The facts leading to this Criminal Suo Motu Revision briefly are as follows :-- Respondent Pario son of Gulsher who has been in custody since the year 1962 as an under-trial prisoner sent an application dated 19-11-1969, through the Superintendent, Central Prison, Sukkur complaining that the case against him pending in the Court of Civil Judge and Section 30 Magistrate, Mirwah was not being decided although the said proceedings had dragged on for several years. This application was put up before the learned Senior Judge of this Bench, who called for the remarks of the trial Magistrate. The learned Civil Judge and Section 30 Magistrate, Mirwah submitted his explanation about the delay in the following words :-- "Criminal case State v. Khairo and others under section 395/ 397/411/414, P. P. C. pertains to year 1962 in which applicant Pario is facing trial as co-accused. The incident is alleged to have taken place on 13-7-1962 and the challan was presented before Civil Judge & F. C. M., Mirwah on 5-10- 1962. The case proceeded with in the Court of Civil Judge & F. C. M., Mirwah and 5 witnesses were examined. Thereafter, on 25-3-1964 the case was referred to Tribunal under orders of Commissioner of Khairpur Division, Khairpur.
The delay between institution and transfer of the case to Tribunal had occurred on the grounds that some time the accused (the applicant Pario and others under-trial prisoners Ranjho and Lalo) were not being produced by the Jail Authorities and some time the witnesses remained absent.
The case had proceeded before Tribunal and after recording statements of accused under section 342, Cr. P. C. the record and proceedings of the case were sent to the District Magistrate, Khairpur (alongwith the findings of Additional District Magistrate, Khairpur Chairman to Tribunal) where from the above case was again transferred to the ordinary Court on 17-8-1968.
After receiving the record and proceedings of the case on 17-8-1968 for trial a fresh number to the case was given as 79 of year 1968, and case was ordered to be tried afresh.
The case was being set down for proceeding after every fortnight but the case did not proceed from the date of receiving record and proceedings till 23-6-1969 as the P. S. I. incharge of the prosecution applied for adjournments on the grounds that he had not received the police papers i.e. police diaries and first information etc. from Additional District Magistrate, Khairpur, Thereafter, on 4-8-1969 and 16-8-1969 the case was proceeded with and 4 witnesses were examined and after that the case has not been proceeded with due to non- production of applicant Pario and other prisoners Ranjho and Lalo.
I may further submit that the prisoners are still not being produced by Jail Authorities in spite of repeated letters issued to them. The Jail Authorities have replied under his No. P. I. A./584 dated 19-1-1970 that the prisoners would not be produced before this Court for want of police escort. The result is that the case is being adjourned from time to time."
The matter was again brought to the notice of the learned Senior Judge, who passed the following order thereon :-- "The applicant has remained as an under-trial prisoner for over seven years. The question that arises is whether it would be in the interest of justice to continue the trial of the case which, had it terminated in time, would have resulted in the expiry of the normal sentence that would have been passed.
Admit this case as Revision Sm Moto, call for the record and notice to Additional Advocate-General for an early date, within one month."
It is in these circumstances that the matter has been placed before me for hearing today.
2. Mr. Manzoor Hussain, who appears for the State in this case has contended that in view of the circumstances mentioned in the remarks of the trial Magistrate the proceedings against respondent Pario amount to an abuse of the process of the Court and should, accordingly, be quashed. I have no hesitation in agreeing with the learned counsel.
In the Crown v. Piru and another (1) it was pointed out that it was not at the sweet will of the prosecution to go on with the case or to get it adjourned; and frequent adjournments of the case for production of prosecution evidence were strongly disapproved.
4. As observed by S. A. Mahmood, J. in Muhammad Husaain v. The State (2): "If the prosecution does not take care to see that a case against an accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its progress, the fault must lie at its door, whether for non-production of sanction, the witnesses, the co-accused from jail, or by frequent transfers of case from Court to Court, by change of law or by the conduct of the Prosecutor....... lt is a mockery of law to allow criminal cases to proceed for four or five years without any progress. It is revolting to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided.
If the prosecution fails persistently without reasonable cause to produce its witnesses, or seeks adjournments unjustifiably, it is tbe duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied for the defence of the accused must suffer by lapse of time and the posecution may also suffer likewise. A fair and speedy trial is the essence and essential of judcial administration in a civilized country.
Protracted proceedings as in this case are a mokery of the law and must be deemed to be an abuse of process of Court."
5. These observations of S. A. Mahmood, J. have been consistently relied upon by this Court.
Reference in this connection may be made to the cases reported as :
(1) Wali Muhammad v. The State PLD 1959 Pesh. 191;
(2) Muhammad Rafi Parvez v. The State PLD 1960 Lah. 986;
(3) The State v. Ghulam Hussain and others PLD 1963 Kar. 679;
(4) Abdul Haque v. The State PLD 1964 Lah. 246; and
(5) Amanullah Khan and others v. The Stale PLD 1965 Kar. 310.
6. Similarly in Mushtaq Ahmed v. The State (1), Sajjad Ahmed, J. (as he then was) quashed the proceedings pending for two years on the ground that the prosecution had failed to produce their witnesses in spite of repeated adjournments in a case which was likely to end in a failure. The following observations of his Lordship may be usefully reproduced :-- "I can realise the difficulties of the prosecution in procuring the services of its witnesses and a reasonable latitude should not be grudged to the prosecution in the matter of production of witnesses, specially in cases where the witnesses are of vital importance and the delay in effecting their service is due to reasons not attributable to the negligence or default of the prosecution. But this latitude has a determinable limit and, to my mind, it would be an abuse of the process of the Court if the prosecution were allowed to go on merrily to produce its witnesses as it chose to do so and be contended with merely routine orders from the Court of issuing process for the witnesses without the prosecution itself making an effective and a conscious effort to have the service of the witnesses effected or to arrange for their production in Court."
7. The position in this respect has not changed after the pronouncement of the Supreme Court in M.
S. Khuwaja v. The State (2). Their Lordships in that case pointed out that there was no limitation in criminal proceedings, and that the view that time is of the essence for competency of a criminal prosecution cannot be accepted as of universal application. In other words, their Lordships merely emphasized the fact that there can be no general rule for quashing any proceedings which had not concluded in a certain specified time and thereby enacting an artificial rule of limitation in criminal proceedings; but each case must be considered on its own facts. This can be seen from the following observations :-- ''On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceeding is really intended to 'secure the ends of justice' or is really 'an abuse of the process of the Court.' To quash a judicial proceeding in order to 'secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an 'abuse', it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
While dealing with the case of Ghulain Qadir Khan v. The State (1), their Lordships considered that in view of the special features of the case the proceedings were rightly quashed; and expressed their final conclusion in the following words :-- ''These circumstances are certainly of weight to support the quashment ordered in that case. We say so in order to emphasise that each case of the present kind must rest on its own peculiar facts and circumstances."
8. In the instant case it is the admitted position that the offences for which the respondent is being tried are alleged to have taken place on 13-7-1962; and he was challaned as far back as 5-10-1962.
He has been facing proceedings for over 7 years now because initially the case was referred to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963 and thereafter again sent back to the ordinary Court. Thereafter the P. S. I. incharge of the case kept on taking repeated adjournments and finally the jail authorities would not produce the accused before the Court. In these circumstances, I feci that the prosecution is not taking interest in the case as they are conscious of the fact that it is not likely to succeed. Indeed the reference to the Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963 is another pointer in that direction.
I have also not been able to understand as to why the case was sent back to the Court of the Civil Judge & F. C. M., Mirwah after the proceedings before the Tribunal had concluded, and, thereafter papers were not being sept to the P. S. I. so that he could proceed with the case instead of taking repeated adjournments which the trial Magistrate was granting rather maehanically. If the case against the respondent had concluded within a reasonable time then even if the normal sentence of seven years' R. I, for an offence under section 395/397, P. P. C. had been awarded to him he would have most likely served out, his sentence by now. But the prosecution have, by their delaying' tactics, indirectly punished the respondent for the aforesaid offence by keeping him in confinement for nearly years without even concluding the trial. I feel that in the circumstances of this case it would be an abuse of the process_of the Court if such proceedings are allowed to continue even for a day longer.
6. For the reasons given above, I would quash the proceedings pending against respondent Pario son of Ciulsher in the Court of Civil Judge and Section 30 Magistrate, Mirwah and direct that he shall be set at liberty forthwith unless required in some other case. .