' MUHAMMAD BASHIR JEHANGIRI, J.---This Criminal Petition and Criminal Petitions Nos.61-P and 62-P of 1997 involve common questions of law and fact, therefore, we propose to dispose of all the three Criminal Petitions by this order.
2. The petitions are directed against the order of the Peshawar High Court, Peshawar, dated 19-2- 1997. By this order, the learned Chief Justice while accepting the Criminal Miscellaneous Nos.158, 159 and 160 of 1994 filed by the three respondents had quashed the proceedings pending against them in the Court of Special Judge, Anti-Corruption (Provincial) under F.I.R. No,89 dated 5-6-1980 registered at Police Station, Dera Ismail Khan Cantt. Gulzar Muhammad, Niaz Muhammad and Maj. (Retd.) Muhammad Sattar Khan at the relevant time were respectively serving in the Agriculture Development Agency, N.-W.F.P. As Deputy Director, Storekeeper and Director. A case was registered on 6-5-1980 wherein all the respondents were involved for an occurrence which had taken place during the year 1973-74 wherein they were charged for having misappropiated some Government money in the transportation/sale of the wheat seed. The petitioners alleged that the registration of the case was the outcome of the departmental jealousies and mala fides; that several Investigating Agencies after enquiry having found them innocent had exonerated them, nonetheless the grievance was that the proceedings were being continued against them maliciously. According to them the Prosecuting Agency even after elapse of 15 years had utterly failed to substantiate its case against the respondents through unimpeachable evidence, therefore, they had sought the quashment of the proceedings under section 561-A, Cr.P.C. Pending in the Court of learned Sessions Judge, Dera Ismail Khan, with powers of Special Judge, Anti- Corruption.
3. The learned Chief Justice, on perusal of the record, observed that in the occurrence which took place in the year 1973, the challan was submitted against the respondents in the Court in 1980 and till the hearing of the quashment proceedings almost 16 years had elapsed but the prosecution failed to conclude its case; that out of 16 witnesses in all, cited by the prosecution, only 5 witnesses had been examined; that in all there were 19 persons who were arraigned as accused in the case but the statement of the witnesses so far recorded did not connect the respondents with the commission of the crime; that of the 19 accused 6 persons had since retired from service and four witnesses have died; that the case property had also been disposed of; that Major (Retd.)
Muhammad Sattar Khan respondent was Director while Gulzar Muhammad respondent was Assistant Director at the time of occurrence and had been posted in Peshawar whereas the occurrence had allegedly taken place at Dera Ismail Khan; that at the relevant time, the respondents were detailed in field duty who had no connection whatsoever with the sale, purchase of seed or hiring of transport which was the basis of the occurrence. It was further observed that not a single bill or challan for the transportation of the said material had been prepared or signed by the respondents and further that the respondents were neither Drawing nor Disbursing Officers during the period the impugned defalcation was detected. The learned Chief Justice then made a reference to the judgment of Peshawar High Court dated 20-5-1992 containing a direction to the learned Sessions Judge to conclude the trial within a month by summoning the Investigating Officer and the prosecution witnesses but he failed to comply with the said direction.
4. It was in this factual background that the learned Chief Justice was of the "considered opinion that there was an inordinate delay of about 15/16 years after the submission of complete challan against the petitioners in the year 1980 and only five witnesses out of 63 mentioned in the challan have so far been examined by the prosecution" and that "the witnesses too have not involved any of the accused-petitoners in the commission of the offence". In this view of the matter, as stated earlier, the proceedings against the respondents were quashed under section 561-A, Cr.P.C.
' It is contended by Mr. Muhammad Azam Khan, Advocate-General, N.-W.F.P. That the High Court should have refrained from exercising its powers under section 561-A, Cr.P.C. As according to him the High Court can no longer interfere under section 561-A, Cr.P.C. To quash the criminal proceedings pending trial, because similar powers have been conferred on trial Court, by sections 249-A, Cr.P.C. And 265-K, Cr.P.C. In support of this contention a case titled Khushi Muhammad and others v. State (1979 SCM R 94) was referred to. The ratio of this case was deduced in the case of Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775) which was to the following effect:-- "We further observe that the order of the High Court was passed on 26-8-1978 and on the material then available on the record no objection could legitimately be taken to the order of the High Court dismissing the quashment petition. It is only on the 20th September, 1978, after the statement of Abdul Ghani (P.W. 5) was recorded, that the argument that there is no likelihood of the petitioners being convicted and thier continuing prosecution would be an abuse of the process of the Court has become available. The order of the High Court cannot, therefore, be said to be erroneous and liable to be set aside in the present proceedings."
' In the case of Mian Munir Ahmad v. The State (1985 SCM R 257) the following principle was enunciated:- " that the powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C., and both can be resorted."
6. In this context this Court in the case of Ghulam Muhammad v. Muhammad Khan and 4 others (PLD 147 SC 317) has observed as under:-- "The argument advanced on behalf of the respondents that the inherent jurisdiction under section 561-A of the Code of Criminal Procedure is not necessarily excluded, because, a provision is also possible, cannot be accepted as a general principle, for, one of the reasons for invoking the inherent jurisdiction of the Court is that no. Other remedy is available for obtaining justice in the cause. It is, therefore, generally accepted that the inherent jurisdcition should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Court with powers to make any order which they are pleased to consider to be in the interests of justice.
These powers are as much controlled by principles and precedents as are its express statutory powers.
' The decision of the West Pakistan High Court in the case of R.C.P. Guignard v. The State and another (PLD 1963 Kar. 868) relied upon by the respondents, does not lay down any contrary principle, for, it clearly recognizes that the High Court will interfere in the exercise of its inherent jurisdcition if it is satisfied that the resort to criminal proceedings 'is doing something which is not warranted by law'. If, however, the decision cited intended to lay down any wider principle then it cannot be approved."
' The learned Advocate-General has cited Raja Haq Nawaz v. Muhammad Afzal and 4 others (1971 SCM R 698) in support of the proposition that resort to the provision of section 561-A of the Cr.P.C.
Should not be lightly made, as this would circumvent the due process of law. We are conscious of this principle which has been enunciated by this Court in the case of Haq Hawaz (supra).
Nonetheless this Court in the same precedent has made reference to the case of Ghulam Muhammad (supra) and approved the law laid down therein that there is power vested in the High Court to quash criminal proceedings if it was satisfied that a false complaint had been brought and the process of the Court was, therefore, being abused, not to advance the interest of justice but to subject the accused person to unnecessary harassment. Another authority of this Court relied upon by the learned Advocate-General reported as Naseem Haider Jafry and 4 others v. The State (PLD 1977 SC 49) wherein this Court had held that quashment of the proceedings on the sole ground of lapse of 8 years' period since the commencement of the trial against them was not conceded to them holding that this Court in the case of Ghulam Muhammad (supra) had already observed that if "an offence has been committed justice required that it should be tried". The facts of the case of Naseem Haider Jafry (supra) are distinguishable inasmuch as the bulk of evidence had already been recorded in that case and it was, therefore, opined that if the petitioners were not guilty, they had the right to be declared as 'honourably acquitted'. In this context we have been able to notice another case of Khushi Muhammad v. State (1979 SCM R 94) wherein the dictum of this Court in the case of Ghulam Muhammad (supra) that "the inherent jurisdcition given by section 561-A, Cr.P.C. Is not an alternative jurisdcition or an additional jurisdiction but a jurisdiction preserved in the interest of justice to redress the grievance for which no other procedure is available or has been provided by the Code itself". It was, therefore, held that till that stage Abdul Ghani (PM. 5) therein had not been examined and thus this Court had noticed that on his examination there was no likelihood of the petitioners therein. Being convicted and their continuing prosecution would be an abuse of the process of the Court had become available,
7. The case-law surveyed would, therefore, clinch the matter. The trial Court can acquit the accused under sections 249-A and 265-K, Cr.P.C., as the case may be, at any stage of the proceedings and in the circusmtances of each case the appropriate remedy for the accused appears to be to request the trial Court to consider their case under the provisions of law. The learned trial Court should thereupon apply its mind to this aspect of the matter and in the first instance, before it proceeds any further with the proceedings, shall decide whether the accused are entitled to be acquitted in terms of section 249-A/265-K, Cr.P.C. If the accused are not held entitled to the acquittal in the terms aforesaid then they have the right to approach the High Court for quashment of the proceedings against them. This rule proceeds on prudence and cautiousness. Nonetheless; both the jurisdictions under sections 249-A/265-K and 561-A, Cr.P.C. Are co-extensive. In the instant case it would have been proper to approach the trial Court in the first instance but there is nothing against the High Court for entertaining, in appropriate case, an application under section 561-A, Cr.P.C. Directly.
8. Again the following exposition of law in Ghulam Qadir Khan v. The State (PLD 1963 (W.P.) Lahore 32), is approved by this Court:-- "In our view, there does not appear to be any sound reason for making a distinction between the delay which might occur during the investigation stage preceding the institution of proceedings in Court, and the delay that might occur during the conduct of the proceedings in Court. The effect in both cases is the same, namely, that justice is delayed, and the accused and in some cases possibly the prosecution may be seriously prejudiced by the long delay occurring between the commission of the offence and the conclusion of the trial. The delay in both cases if unjustified, will constitute unnecessary harassm ent of the subject, by keeping the sword of prosecution hanging over the head of the accused for a long time. The proceedings must, therefore, be regarded as oppressive in either case and not calculated to secure the ends of justice. In both cases it is the process of the Court which is invoked, and therefore, if there is any abuse of the processs of the Court, the proceedings may be quashed."
9. We are conscious of the fact that mere delay per se is not generally sufficient to come to a finding that there is an abuse of the process of the Court. If there is good reason for delay at the investigation stage, by reason of say, the complexity of the case, the magnitude of the evidence to be collected, or disappearance of the accused persons, it is clear that such a delay will not constitute a good reason for quashing the proceedings. In the case of Ghulam Qadir Khan (supra) it had been rightly pointed out that similar considerations would apply to the delay that might occur in the disposal of the case after it is instituted in Court. If there are no unnecessary adjournments by the Court, nor is the delay occasioned by undersirable tactics on the part of the prosecution but, on the other hand, it is due to some action on the part of the accused person or due to the very nature of the case itself, such a delay would not be considered as amounting to an abuse of the process of the Court. It was in this background that further principle in the case of Ghulam Qadir Khan (supra) was enunciated that the circumstances connected with the delay in the disposal of the case will have to be examined in each case before a finding can be arrived at as to whether the delay constitutes an abuse of the process of the Court or not, and no valid distinction can be made in the delay that occurs during the investigation stage or c that occurs during the trial.
9. Coming to the present case we have already stated that the case was initially registered against the respondents in the year 1973 and notwithstanding the directive from the High Court to the learned Special Judge Anti-Corruption (Provincial) to complete the trial within a month till 19-2- 1997, when the impugned order was passed, only 5 witnesses had been examined. Thus a period of almost a quarter of century had elapsed but the fate of the case was not yet in sight. It was a sheer abuse of the process of the Court and, therefore, the High Court was perfectly justified in quashing the proceedings in exercise of powers conferred on it under section 561-A Cr.P.C. Notwithstanding the availability of alternate remedy to the respondents under sections 249-A and 265-K Cr.P.C. For approaching the trial Court.
10. After hearing the learned Advocate-General, N.-W.F.P., we are satisfied that the delay of 15/16 years in these cases after the submission of challan in the trial Court in the conclusion of the trial could not be explained away on any hypothesis. It is a good ground for quashment of the proceedings. In these circumstnaces, we are of the considered view that the High Court was perfectly justified in quashing the proceedings. There is no good ground to interfere. The petitions are accordingly dismissed.