' This will dispose of Criminal Miscellaneous No,115/Q of 1988 by Islam Hussain Zaidi, Criminal Miscellaneous No, 210/Q of 1988 by Muhammad Iqbal, Criminal Miscellaneous Nos. 211/Q, 225/0 and 262/Q of 1989 by RA. Zakir, Criminal Miscellaneous No, 226/Q of 1988 by Babu Muhammad Riaz and Criminal Miscellaneous No, 231/0 of 1988 by Khawaja Muhammad Riaz; these are all petitions under section 561-A of the Cr.P.C.
2. These petitions have arisen out of cases pending in the Court of the learned Special Judge, Anti- Corruption, Rawalpindi. Files of three cases have been received from the Court of the learned Special Judge. They show that Haji Muhammad Iqbal, petitioner, is accused in two cases; that RA.
Zakir and Khawaja Muhammad Riaz, petitioners, are accused in all the cases; that Babu Muhammad Riaz, petitioner, is accused in one case and that Islam Hussain Zaidi, petitioner, is also accused in one case.
3. As in the forefront of the arguments of the learned counsel for the petitioners was the delay in the trial of the cases, one must, to appreciate that contention, hark back to the year 1976, when on 7-6-1976, what was known as the wheat scandal case was registered by the Federal Investigating Agency. After investigation, interim challans were filed in the Court of the learned Special Judge (Central) against 25 persons; they included Pir Hamayon Shah and Babu Muhammad Riaz of the Karwan Trading Company and Haji Muhammad Iqbal and Messrs Iqbal and Brothers, three railway officers and 19 officers of the Provincial Food Department. The officers of the Provincial Food Department included GA. Pirzada, then posted as Rationing Controller of Food, Rawalpindi.
However, when the final challans, 16 in number, were filed, the names of the three Railway officers and G.A. Pirzada were excluded from the list of the accused persons; instead, G.A. Pirzada was cited as a P.W. Thus, in the final challan 21 officers of the Provincial Food Department were named as accused persons. The cases were pending when Haji Muhammad Iqbal and Khawaja Muhammad Riaz, petitioners, instituted two petitions, being Criminal Miscellaneous No, 632 of 1978 and Criminal Miscellaneous No, 321 of 1979, seeking the quashment of the cases against them. The petitions were dismissed by a judgment dated 19-1-1982 of my learned brother Ghulam Mujaddad Mirza, J. (as he then was) with the direction that 'trial in both the cases must conclude within four months' it was added that 'if the trial is not concluded within four months, the petitioners shall be entitled to come to this Court again'. Prosecution evidence was in progress in the Court of the learned Special Judge (Central) when two of the accused persons, Mr. Muhammad Aslam Khan and Mr. Naseem Ahmad Qureshi, both of the Provincial Food Department, challenged the jurisdiction of the learned Special Judge (Central) to try their cases, by means of three writ petitions, in the year 1983. These petitions succeeded and my learned brother Rustam S. Sidhwa, J. Was pleased, by his judgment, dated 2-5- 1983, to hold that 'in the absence of a proper Notification, like the earlier one of 12-2-1977 or 26-7- 1977, authorising the Special Judge (Central) with Headquqarters at Rawalpindi, to try all cases arising out of the said F.I.R., the said Special Judge (Central), Rawalpindi, has no jurisdiction, at least vis-a-vis the present two petitioners, who are Punjab Government employees, to try them. Had there been any Federal Government employees in the present three challan cases, their trial by the Special Judge (Central), Rawalpindi, would be in order, as the present Special Judge, under his own Notification of appointment issued by the Federal Government, has his territorial limits for Federal Government employees defined, which includes the Rawalpindi Division. These territorial limits, which are fixed by the Federal Government and apply to the Federal Government employees, ipso facto do not apply to the Provincial Government employees, if he is nominated as their Special Judge, unless the Provincial Government also expressly states that the limits of his territorial jurisdiction fixed for Federal Government employees will also apply for the Provincial Government employees, whose cases are entrusted to him'. Consequently it was held that the proceedings qua the above-mentioned accused persons as and from 13-10-1977 'are without lawful authority and are hereby quashed'. It was, however, added that this would not 'prevent the Provincial Government from bringing out a fresh notification, in which case proceedings may be commenced against the petitioners, as provided by law. Nothing herein contained shall prevent the Government from trying the other accused in the present three challan cases or shall prevent the Special Judge (Central), Rawalpindi, from transferring these cases to the ordinary criminal Court for disposal, in case no further Notification is issued in his favour and he considers the said step legal and proper'. In view f these findings, the public prosecutor thought it proper to withdraw the cases from the Court of the learned Special Judge (Central) on 25-9-1983.
4. Fresh challans were filed against the petitioners herein and their co- accused Mr. Muhammad Aslam Khan in the Court of the learned Special Judge (Provincial), Rawalpindi, on 10-12-1984, and it is out of those cases that the present petitions have arisen. Thus, out of 21 accused persons, against whom, cases were pending in the Court of the learned Special Judge (Central), only six accused persons, namely, the petitioners and Mr. Muhammad Aslam Khan were named as accused persons in the fresh challans filed on 10-12-1984 in the Court of the learned Special Judge (Provincial).
5. Proceedings in the Court of the Special Judge (Provincial) were in progress when in March, 1987, all the petitioners herein made an application under section 526 of the Cr.P.C. Seeking the transfer of the case from Rawalpindi to Lahore on the ground that 'most of the accused, who were Government servants have now retired and they belong to Lahore. Majority of the prosecution witnesses also belong to Lahore'. My learned brother Ghulam Mujaddid, J. (as he then was) was pleased to dismiss the application by his order, dated 7-6-1987, for, in his view, 'the grounds urged for transfer of the case are not convincing'. He, however, directed 'the trial Court to commence the trial without fail within a month under intimation to the Registrar of this Court'. The learned Special Judge intimated this Court by a letter, dated 13-7-1987 that the cases had been fixed for trial from 21-7-1987. Yet another transfer application was made by Babu Muhammad Riaz, petitioner, in September, 1987, on the grounds that the prosecution was not producing its witnesses and that for some personal reasons, the learned Special Judge should not try the petitioners' case. That application was dismissed on 8-2-1988 by my learned brother Rashid Aziz Khan, J. It is noteworthy that by the order of this Court, proceedings in the Court of the learned Special Judge had remained stayed during the pendency of these two transfer applications.
6. It should be mentioned here that Pir Hamayon Shah of Karwan Trading Company had died before the present challans were filed and Mr. Muhammad Aslam Khan, the then Rationing Controller of the Provincial Food Department, died after the filing of these challans in that Court.
7 It is also noteworthy that at the relevant time, of the petitioners, Islam Hussain Zaidi was the Rationing Controller Rawalpindi, Mr. RA. Zakir was Budget and Accounts Officer and Khawaja Muhammad Riaz was the Assistant Accounts Officer in the Food Department.
8. As observed above, the principal ground urged on behalf of the petitioners is the delay in the trial. It was argued that the petitioners have suffered the agony of a very long and protracted trial since 1976; that the prosecution was not sure of its ground, so much so that for a number of years, the cases had remained pending in the Court of the learned Special Judge (Central), who had no jurisdiction in the matter, that initially 25 accused persons including three railway officers were challenged, but when the final challans were filed, only 21 accused persons were left and that when the fresh challans were filed in the Court of the learned Special Judge (Provincial), the number of the accused persons was reduced to seven. In this connection, my attention was called to my learned brother Ghulam Mujaddid Mirza, J.'s judgment dated 19-1-1982, dismissing the abashment petitions of Khawaja Muhammad Riaz and Haji Muhammad Iqbal. It was then argued that the prosecution was mala fide; that 'even if the prosecution case is accepted on its face value, even then the petitioner had incurred no criminal liability. At the most, it may be a case of civil nature against the petitioner (Haji Muhammad Iqbal)'. On behalf of Khawaja Muhammad Riaz, petitioner, great stress was laid on the factum of delay and also on the fact that he had been dismissed from service and had lost all the benefits of service including pension. Dealing with these arguments, my learned brother Ghulam Mujaddid Mirza, J. Observed:-- "Nevertheless, I find that the contentions raised by both the learned counsels are not without substance. The prosecution is guilty of inordinate delay as well. The only obstacle which stands in the way of the petitioners is that so far no evidence has been recorded. This is fortunate for the prosecution but unfortunate for the two petitioners because in the absence of any evidence, I am not inclined to grant the prayer of quashment although both the counsels laid emphasis that it is not necessary to wait for some evidence being recorded inasmuch as perusal of the challan simplicity would show that the prosecution has no legs to stand. I don't agree with this submission."
' Learned counsel for the petitioners also referred to the observations of my learned brother Ghulam Mujaddid Mirza, J. In his order, dated 7-6-1987, namely, that 'it is really disgusting to note that in a case registered in 1976 not a single witness so far has been examined. This shows lack of interest on the part of the prosecution and amounts to unncessary harassment to the accused'.
9. Now, the 'inherent jurisdiction' which is being invoked by the petitioners is a concept of the law of England, where there is no written constitution and where most of the jurisdiction which the Courts exercise, including the supervisory jurisdiction of the High Court to issue writs, is inherent jurisdiction. It was said in Willis v. Earl Beauchamp (1889) 11 P.D. 59, 62:2 T.L.R. 270 CA cited in Attorney-General v. Vernazza (1960) A.C. 965 at 973, that the Courts have inherent jurisdiction to 'prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation, A which must be long and expensive'. The contention whether the delay in itself is a ground for quashment under section 561-A, Cr.P.C. Was considered in M.S. Khawaja v. The State PLD 1965 SC 287. It was held that time is not of the B essence for the competency of a criminal prosecution'. Limitation does not apply 1 to criminal prosecutions, and it is also inappropriate to examine questions of delay thtough the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power `to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds sucly as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law'.
10. It was pointed out that 'abuse, as attracting the inherent power of the Court', must be abuse of the process of any Court:-- "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 harassm ent 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."
11. Here, the allegations in the challans against the petitioners, shortly stated, are that Messrs Karwan Trading Company and Messrs Iqbal & Brothers had obtained contracts from the Provincial Government for local handling and cartage of foodgrains and for the transportation of wheat from various districts of the Punjab to Rawalpindi District during the relevant period and that Pir Hamayon Shah, Babu Muhammad Riaz of Karwan Trading Company, Haji Muhammad Iqbal of Messrs Iqbal & Brothers and the officials of the food, department had joined hands and had, by various acts of fraud and forgery, deprived the Government of large sums of money. In short, the allegations against the petitioners are that they had committed vairous acts contrary to sections 409, 420, 468 and 471 read with section 109 of the P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947.
12. Learned counsel for Haji Muhammad Iqbal and Babu Muhammad Riaz, petitioners, argued that the allegations against them are allegations of civil nature; in that connection, he stated that Karwan Trading Company had instituted a civil suit against the Government and in pursuance of the arbitration clause in the contract, the dispute had been referred to the arbitration of the Director Food. As observed above, the allegations against Haji Muhammad Iqbal and Babu Muhammad Riaz, petitioners, among others are that they had received sums of money from the Government on the basis of false and fictitious documents. If this be so, there is no question that besides civil liability, if any, the petitioners were also criminally liable for their acts. On behalf of R.A.
Zakir and Khawaja Muhammad Riaz, petitioner, it was argued that they had, in their official capacity, acted strictly in accordance with the rules and, therefore, they cannot be held criminally liable, particularly when the Secretaries of the Food Department, Mr. Muhammad Rafique and Ch. Muhammad Akram, under whose orders, the payments were made, were let off. Mr. Muhammad Rafique, it is noteworthy, was Secretary to the Provincial Government, Food Department, from 1-2- 1972 to 8-21972; from 12-9-1972 to 17-1-1974 and from 8-5-1974 to 19-6-1974 and Ch. Muhammad Akram was Secretary to the Provincial Government, Food Department, from 21-2-1975 to 3-9-1976.
Mr. Muhammad Rafique was proceeded against departmentally and was, on the charges arising out of the wheat scandal case, dismissed from service. On appeal to the Service Tribunal, he was re-instated. Ch. Muhammad Akram was dismissed from service also on the allegations concerned with the wheat scandal case but was re-instated by the Government on 10-8-1977. As was said by my learned brother Ghulam Mujaddid Mirza, J. In his judgment dated 19-1-1982, in the absence of any evidence, it cannot be said that 'the prosecution has no legs to stand'. No evidence has yet been recorded and as will be presently seen, the prosecution is not entirely to F blame for it.
Learned counsel for Islam Hussain Zaidi, petitioner, pointed out that the only allegation against him is that he had ante-dated a letter; his contention was that without corresponding loss to anybody, the mere ante-dating of a document is not forgery. But it is plain that whether or not the alleged antedating has caused a corresponding loss to the Government is a question of evidence.
13. Thus, the position as regards the allegations against the petitioners is the same as it was when the quashment petitions were dismissed on 19-1-1982. There is also no question that unless evidence is recorded or unless the prosecution is afforded reasonable opportunity to produce its evidence and it fails to do so, it cannot be said that 'the prosecution has no legs to stand'. That at one stage the number of accused was 25, at another 21 and now 6, in itself, affords no reasons to think that the prosecution has not been sure of its ground, for, it may well be that upon closer scrutiny of cases of individual accused persons, only those persons were challaned against whom there was evidence to sustain the charges.
14. Learned counsel for Islam Hussain Zaidi, petitioner, also argued that the F.IA. Had no jurisdiction to investigate the case. But the stage of investigation has long passed; and in any case, the matter being now before a Court of competent jurisdiction, any antecendent irregularity or illegality in the investigation cannot affect its jurisdiction to try the case (See R. v. Huges-4 QBD 614, and Prabhu v.
Emperor AIR 1944 PC 73.
15. Regarding the alleged delay in the trial, it appears that the complete challans were filed in the Court of learned Special Judge (Central) in April, 1978. The same year Khawaja Muhammad Fiaz and Pir Hamayon Shah instituted two quashment petitions; another quashment petition was instituted by Haji Muhammad Iqbal in the year 1979. Those petitions were decided by my learned brother Ghulam Mujaddid Mirza, J's order of 19-1-1982. During the pendency of those petitions, the cases had been transferred to the Military Court but had been received back on 2-11-1980. During this period one of the accused persons, Muhammad Aslam, had instituted a writ petition challenging the authority of the Federal Investigating Agency to investigate the cases; that writ petition was dismissed by my learned brother Gul Baz Khan, J. (as he then was) by his judgment dated 2-12-1980. Before the learned Special Judge (Central), petitions under section 265-K were made by Muhammad Aslam and NA. Qureshi accused persons; they were dismissed on 2-3-1983.
Charges against some of the accused persons were framed in Septemebr and October, 1982. As has been noticed above, in the year 1983, Muhammad Aslam and N.A. Qureshi accused persons had instituted two revision petitions in this Court challenging the jurisdiction of the learned Special Judge (Central) to try them and those petitions were accepted by this Court's order dated 2-5- 1983. After the cases had been withdrawn from the Court of the learned Special Judge (Central) and fresh challans had been filed in the Court of the learned Special Judge (Provincial) on 10-12- 1984, the files were put up before the learned Special Judge (Prvincial) for the first time on 9-2- 1985, when the learned Special Judge (Provincial) noticed that all the accused persons belonging to the Food Department had since retired from service and it was not necessary to write to the Government for the sanction to prosecute them. I have perused the order sheet from 9-2-1985 onwards. It appears that most of the adjournments were occasioned because of the absence of one or another accused person; some time was consumed in deciding the application under section 249 read with section 265-K of the Cr.P.C. Of Muhammad Aslam accused. At times, the learned Special Judge had to have resorted to coercive measures to procure the attendance of the accused persons. This was how the matter stood when the petitioner made a transfer application in March, 1987, which was dismissed on 7-6-1987. As has been noticed above, my learned brother Ghulam Mujaddid Mirza, J. (as he then was). Had, while dismissing the transfer application, directed that the trial should commence without fail within a month and the learned Special Judge had intimated this Court by his letter dated 13-7-1987 that the trial had been fixed for 21-7-1987. But then yet another transfer application was made in September, 1987 and the application was dismissed on 8-2-1988. Shortly thereafter that is on 27-3-1988, Criminal Miscellaneous No, 115/Q of 1987 was instituted by Islam Hussain Zaidi and the petitions by the other accused persons followed. I am, therefore, of the view that even if delay in itself is a ground for quashing the proceedings, the prosecution is not entirely to blame for the delay in the trial.
16. In the result, I would dismiss the petitions.
17. As noticed above, all the petitioners had, by their transfer applications made in March, 1987, sought the transfer of their cases from Rawalpindi to Lahore on the ground that most of the accused persons, who were Government servants, had retired from service and they belonged to Lahore. In view of the fact that the accused persons, who were in Government service, have since retired from service and that it will be highly inconvenient for them to travel the long distance from Rawalpindi to Lahore to attend the Court of the learned Special Judge (Provincial) on every date of hearing. I deem it to be in the interest of justice that the cases are withdrawn from the Court of the learned Special Judge (Provincial), Rawalpindi and made over to the Court of the learned Special Judge (Provincial), Lahore. I . The cases against the petitioners shall stand transferred to the Court of the learned Special Judge (Provincial), Mr. Lutfur Rehman, before whom the accused persons shall appear on 20th instant. As these cases are very old cases, the learned Special Judge shall give them priority over other cases and shall dispose them of within a maximum period of six months under intimation to this Court. .