These two petitions under section 561-A, Cr. P. C. Are for quashing of the proceedings of case under section 420, P. P. C. And section 5(2) of the Prevention of Corruption Act II of 1947 read with section 120-B/109, P. P. C. Pending trial for about 12 years originally being Case No. 87 of 1961 and then re- numbered as Special Case No. 76 of 1966 and again re-numbered as Special Case No. 76 of 1969 and pending in the Court of Special Judge-cum-Enquiry Officer, Karachi. As all the four petitioners in both the Cases Nos. 563/72 and 56/73 are involved in one pending case stated above, before the learned Anti-Corruption Judge and seek to quash the same proceedings, I proceed to decide both the petitions by this single judgment.
2. On 16-9-1960, a case was registered before the Special Police Establishment under section 5 (2)
Act 11 of 1947 read with section 468/471/ 42,0/120-B, P. P. C. Against the present petitioners and one Syed Saghir Hasan and Syed Ibne A.I Zaidi. The trial has been pending for a period of 12 years before the Court below. The main accused Syed Saghir Hasan has died during the trial on or about August, 1965. Out of 30 witnesses of the prosecution admittedly only one witness has been partially examined so far. The charges related to the alleged wrongful payment on incorrect bills to Syed Saghir Hasan and the defence of all the accused-petitioners was based on same set of documentary evidence but considerable part of this documentary evidence has since then disappeared and the petitioners, it is alleged, are being materially prejudiced in defence to prove their innocence. Numerous adjournments were sought by the prosecution since the submission of the charge-sheet in 1961 up to the date, but the prosecution was successful to produce only one witness but that also was partially examined. In view of the extremely slow prosecution of the case one of the petitioners Syed Ibne A.I filed an application in the High Court under section 561-A for quashment of the proceedings being No. 116/67 which was heard and dismissed by a learned Single Judge on 29-1-1970. An application for Special Leave to Appeal against the above judgment of the High Court was filed before their Lordships of the Supreme Court for quashment of the proceedings which was numbered as P. S. L. A. K-9 of 1970 Special Leave was granted and the appeal was finally heard by the Supreme Court and the appeal was allowed by their judgment on 13-9-1972 quashing the proceedings again the appellant Syed Ibne A.I Zaidi.
3. The present petitions are filed for quashment of the proceedings mainly on the ground that the reasons given by the Honourable Supreme Court for quashing of the proceedings against one of the co-accused Syed Ibne A.I Zaidi, who was petitioner before the Supreme Court, equally apply to the petitioners and for the same reasons the proceedings against the present petitioners may also be quashed. It was also urged by Mr. Sohail, counsel for the petitioners that even on merits the pending proceedings are liable for quashment because even uptill now no sanction for the prosecution of the petitioners has been received and the trial of the petitioners is in effect prosecution and punishment and constitutes grave abuse of the process of Court. I may point out here that Mr. Munawar Malik, Advocate, who appeared for the State in both the petitions in view of the judgment of their Lordships of the Supreme Court, which I will presently refer, as well, on merits did not oppose the present petitions and submitted that the pending proceedings may be quashed.
4. While quashing the proceedings in Criminal Appeal No. K-18 of 1970, on appeal of Syed Ibne A.I Zaidi, one of the co-accused in the pending proceedings, after giving the facts and background of the case, the observations of their Lordships may be quoted with benefit as under:- "The examination of the order sheets also reveals that only on two occasions was the case adjourned at the request of the accused while as many as sixty-two adjournments were due to the dilatoriness of the prosecution and or the inaction of the investigating agencies.
The main accused is now dead. The only witness examined so far has now retired from the service of the Karachi Development Authority and his whereabouts are not known to the prosecution. They cannot even serve him with notices. Some of the documents called for by the appellant have been lost. There have been successive transfers of the case to the obvious inconvenience of the appellant. The case is still at the stage where it was on the 20th March 19(3,2 when the only witness examined so far was for the first time examined. We cannot to obvious of the fact that neither the Central nor the Provincial Government ever gave sanction for the prosecution of the appellant.
From the facts and circumstances mentioned above it is abundantly clear that there has been unprecedented delay in the prosecution with--out any satisfactory explanation. The conduct of the prosecution has been anything but diligent; nay on several occasions it was even negligent. The leisurely and care-free Manner in which the prosecution appears to have been conducted leads one to the inference that the delay was deliberately brought about to defeat the ends of justice or to create a perversion of the purpose of the law to cause harassment to the appellant, who must be presumed to be innocent so far. Furthermore, the appellant is likely to be seriously prejudiced in the conduct of his case on account of the loss of the documents and his reduced capacity to defend himself. To secure the ends of justice it is necessary that the prosecution should be conducted in a diligent manner and without causing any unnecessary delay, for such delay can hardly be said to advance the cause of justice. The longer the prosecu--petition lasts the greater is the harassm ent to the accused and the lesser becomes his capacity to deferred himself efficiently.
The views we have expressed are fully consistent with those expressed in the case of M. S. Khawaja v. The State PLD 1965 SC 287. The present is clearly a case in which the machinery of the law is being employed for an operation from which no result in furtherance of justice can accrue. This is not a case of mere delay in the conduct of the proceedings but one of intentional procrastination amounting to a clear abuse of the process of law."
5. As is apparent that the some set of prosecution witnesses and documentary evidence is to be produced by the prosecution against the present petitioners as well as Syed Ibne A.I Zaidi whose appeal has been accepted by the Supreme Court and the proceedings quashed. The prosecution, as observed by their Lordships of the Supreme Court, has miserably failed to prosecute this case with difference, as a result the appellant is that case and subsequently the present petitioners are materially prejudiced in their defence. Even otherwise, there is no chance that the prosecution in any way will he able to bring any evidence worn consideration and have any chance against the present petitioners. I accept the submission of Mr. Sohail, learned counsel for the petitioner that the judgment of the Supreme Court may be applied to the case of the petitioners as well although they were not party in the appeal. But they were party before the High Court. Normally I would have issued directions, if any purpose would have a been served, to the prosecution to expedite the matter but in view of the weighty observations of their Lordships of the Supreme Court quoted above and seeing no chance of any successful prosecution, the pending proceedings appear to me nothing less than misuse of the process of the Court.
6. I therefore, accept both the petitions and direct the quashment of the proceedings against the present petitioners, namely, Mohammad Mansoor, Muhammad Shafiq and Riaz Ahmad in Criminal Misc. Application No. 563 of 1972 and Nasir Abbas Rizvi in Criminal Misc. Application No. 56 of 1973.
Order accordingly.