This case is a good illustration of the way in which the "poverty-struck dumb accused, too feeble to protest, languish in prisons for months and years on, and awaiting trial, because of the insensibility of the prosecuting agencies". Delay in disposal of criminal cases is one of the sad and distressing features of our judicial system. The delay in trial, whether deliberate or due to circumstances beyond control causes a mental agony and a sort of punishment without trial and conviction. It is high time now that something should be done to save the accused persons from such unjustified harassm ent.
2. Applicant Islamuddin who was arrested in the year 1975 was involved in number of cases. On 29- 11-1980 the Government of Sindh made an application under section 526, Cr.P.C., through the Additional Advocate-General before this Court seeking transfer of the following cases pending at Thatta, Tando Adam, Hyderabad and Mirpur Khas against the applicant to one Court:-
(i) Crime No,45 of 1975, Jhirak P.S., under section 379, P.P.C. Pending in the Court of Civil Judge and F.C.M. Thatta.
(ii) Crime No,1 of 1978, Town P.S. Mirpur Khas, under section 379, P.P.C. Pending in the Court of joint Civil Judge and F.C.M. Mirpur Khas.
(iii) Crime No,30 of 1978, Tando Adam P.S., under section 13-D of the Arms Ordinance, 1965, pending in the Court of Civil Judge and F.C.M. Tando Adam.
(iv) Crime No,79 of 1978, City P.S. Hyderabad (Sindh), under section 309, P.P.C. Pending in the Court of A.C.M. City, Hyderabad (Sindh).
3. The said Transfer Application bearing No,66 of 1980, was allowed by the then Chief Justice who was pleased to transfer all these cases to the Court of A.C.M.-V (South) Karachi, where three cases shown at Serial No,(i), (iii) and (iv) were received, while the case at S.No,(ii) was not even challaned.
No progress was, however, could be made in all these cases during all this period. In the meanwhile the applicant was shifted to Central Jail, Rawalpindi on 10-4-1983 to face trial in Crime No,74 of 1978, Jhelum City P.S., under section 302-392-397/34, P.P.C. Which is pending decision in a Court at Rawalpindi. It is the grievance of the applicant that no progress has been made in any of the above four cases which is a glaring example of the abuse of process of law. He has, therefore, invoked the inherent jurisdiction of this Court seeking quashment of above proceedings pending against him, through this application filed under section 561A, Cr.P.C.
4. The report of concerned S.H.O. Was called in respect of Crime No,1 of 1978, Town P.S. Mirpur Khas, under section 379, P.P.C. Who submitted as follows:- "That the then S.H.O. Inspector Sher Khan (Now R.I. Police Line Mirpur Khas) appeared before this Hon'ble Court on 17-3-1991 in the capacity of Investigating Officer of Crime No,1/78, under section 379, P.P.C., who stated that the said case was instituted on 3-1-1978 and challaned before the Court of Joint Civil Judge and F.C.M., Mirpur Khas on 17-3-1991. He further added that the relevant papers of the challan were kept ready for challaning in the year 1978, but could not be produced and was consequently challaned on 17-3-1991."
5. It is thus obvious that the charge-sheet in the above case was submitted before the competent Court after 13 years of the incident and that too when the report from the concerned S.H.O. Was called by this Court.
6. The remaining three cases were also not traceable and it was due to personal efforts of City and Additional District Magistrate (South) Karachi, that the said cases were found and sent to this Court. The perusal of the R&P of the case at S.No,(i) shows that it was pending in the Court of A.C.M.-V (South) Karachi, which was not placed before the Magistrate after 14-1-1982. It appears that the record was consigned without any further action/order. The case at S.No,(iii) was transferred to the Court of A.C.M. XX (South) Karachi. There is, however, no order-sheet after 21-1- 1987. What happened to this case?, nobody knows. Even the order-sheets, dated 20-11-1986, 8-12- 1986, 23-12-1986, 7-1-1987 and 21-1-1987 were not signed by the Magistrate. The case at S.No,(iv) was finally transferred to the Court of A.C.M.-I (South) Karachi, where it remained pending till 3-6- 1988, when the last order-sheet was signed. There is nothing on record to show as to what happened to this case. It is, however, an admitted position that no progress was made in any of the four cases which included a case of 1975. There is also no dispute that the applicant has all along remained in custody during all this period.##TE ##
7. I have heard the applicant in person, who was produced from Central Jail, Rawalpindi and Mr. S.Z.A. Qureshi, learned counsel for the State. I am indebted to Mrs. Ismat Mehdi, Advocate who has represented the applicant/accused as amicus curiae, for the industry she has devoted to this case and the ability with which she has presented it.
8. Mrs. Ismat Mehdi, learned counsel has referred me to a wealth of case-law in an attempt to show that delay of this kind in disposal of criminal cases amounts to abuse of process of law entitling the accused person to the grant of relief. In the case of M.S. Khwaja v. The State, reported in PLD 1965 SC 287, the question of delay was considered in the following context:- "The impression is gained from these quotations that in the learned Single Judge's view time was of the essence for the competency of a criminal prosecution, and to that extent, we must observe that his views cannot be accepted as of universal application. Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through 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 such 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."
9. The Supreme Court of Pakistan has, therefore, left it open to exercise inherent powers, to prevent abuse of process of law on the ground of delay, although in a very rare case.
10. What is then the rare case? In the elegant words of Bose, J., expressed in the case of Machander v. The State of Hyderabad, reported in AIR 1955 SC 792:- "We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one-sided. It has many faces and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.
' Except in clear cases of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower Courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not; and one broad rule must apply in all cases."
11. In Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna reported in AIR 1979 SC 1360, the question of delay in the disposal of a criminal case was considered and it was observed:- "There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under-trial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough: how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice."
12. The cases reported as Khuda Bux v. The State (PLD 1979 Karachi 17), Israr Hussain v. The State and 5 others (1986 PCr.LJ 574), Mchdi Ali v. The State (1986 PCr.LJ 2053), Zakir Hussain and 2 others v. The State (1987 PCr.LJ 54), Muhammad Mahmood Ahmed v. The State (1987 PCr.LJ 312), Syed Niaz Ahmed Naqvi v. The State (1989 PCr.LJ 1357) are guiding judgments on the point of delay. In the last cited judgment this Court observed as follows:- "The policy of crimial law is to bring persons accused to justice as speedily as possible so that if they are found guilty, they may be punished and if they are found innocent they may be acquitted.
Delay in justice amounts to denial of justice. Delay causes severe hardships to the parties and may in general affect litigants differentially. It is bad because it brings to the entire judicial system a loss of public confidence and respect."
13.A criminal trial which drags on unreasonably long time cannot be said to a fair trial. One of the four cases in which the applicant is facing trial was challaned after 13 years and that too after the report from concerned S.H.O. Was called by this Court. The other cases are also pending for the last 13 to 16 years without any progress. In fact they were not even traceable and were located after the R & Ps were summoned by this Court. This is shocking state of affairs. I cannot do better than quoting the weighty observations of the Supreme Court of India made in the case of Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, reported in AIR 1979 SC 1360:- "This petition for a writ of habeas corpus discloses a shocking state of affairs in regard to administration of justice in the State of Bihar. An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in Courts of law. The offences with which some of them are charged are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.
We are shouting from housetops about the protection and enforcement of human rights. We are talking passionately and eloquently about the maintenance and preservation of basic freedoms.
But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end? Are expeditious trial and freedom from detention not part of human rights and basic freedoms? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence?
They have over the years ceased to be human beings: they are mere ticket-numbers. It is high time that the public conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for jusice-- a commodity which is tragically beyond their reach and grasp.
Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy."
14. This view was reiterated by the Supreme Court of India in the case State of Maharashtra v.
Champalal Punjaji Shah, reported in AIR 1981 SC 1675, wherein the following observations were made:- "Sometimes when the evidence is of a weak character and a conviction is not a probable result, the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to harass them. This is a well-known tactic in most conspiracy cases. Again, an accused person may be seriously jeopardised in the conduct of his defence with the passage of time. Witnesses for the defence may become unavailable and their memories too may fade like those of the witnesses for the prosecution. In such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by Article 21 of the Constitution.
Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial. A fair trial implies a speedy trial."
15. From all the very numerous cases to which I have referred and many others, I am of the view that in all the four cases referred to in para. 2 ante, the proceedings are liable to be quashed, as was done in respect of two cases, viz., Crime No,330 of 1971, Korangi P.S., under section 332, P.P.C.
And Crime No,397 of 1977, Ferozabad P.S. Under section 379, P.P.C., pending against the applicant, the proceedings of which were quashed by my brother Allah Dino Memon, J. In Cr. Misc. No,J-301 of 1989, decided on 15-1-1990. Accordingly the application under section 561-A, Cr.P.C. Is allowed and the proceedings in all the above four cases pending in different Courts are quashed. The applicant who is presently confined in Central Jail Rawalpindi be informed accordingly and a copy of judgment may also be sent to him.
16. The copies of this judgment may also be sent to Chief Secretary and Home Secretary to Government of Sindh for taking necessary action against the concerned Magistrates who consigned the record of these cases without deciding them, and the police officer who did not submit the charge-sheet against the applicant for a period of 13 years without any reasonable cause.