' Through this revision petition under sections 435/439, Cr.P.C. The petitioner seeks setting aside of order dated 15-5-2000 passed by learned Special Judge, Special Court, (Offences in Banks), Lahore, whereby respondent No.2 was acquitted under section 265-K, Cr.P.C., when the case was fixed for framing of the charge.
2. The brief facts of the case are that United Bank Limited was complainant of case F.I.R. No.19 dated 26-5-1992, registered under sections 409/420/467/ 468/471, P.P.C. Read with section 5(2)
Prevention of Corruption Act, 1947, at Police Station, F.I.A., C.B.C., Multan. The allegation against respondent No.2 was that while posted as Manager in Basti Malook Branch, Multan he had embezzled a sum of Rs.3,25,998 deposited by different Account Holders and he also prepared a fake and forged M.T. Of Rs.3,15,000 allegedly issued by Chakwal Branch and encashed the same from the Head Office's account.
3. Learned counsel for the petitioner contends that there was sufficient evidence available on the record to connect the respondent-accused with the alleged offences but the acquittal order has been passed without affording opportunity for producing evidence to prove the case against respondent No.2, who had committed heinous offence. It is contended that revision petition is maintainable as the acquittal order was passed before framing of the charge. The reliance is also placed on 1993 SCMR 1853.
3-A. Learned counsel for private respondent has opposed this petition on the ground that remedy of an appeal under section 417 (2-A), Cr.P.C., was available and as such the revision petition is not maintainable. It is next contended that it had become a case of no evidence as the account holders had refused/denied to give any amount to respondent, which was allegedly misappropriated by him and report of the Handwriting Expert was also not sufficient to connect the respondent with the commission of the crime, hence, continuation of trial would be sheer wastage of time and abuse of process of law:
4. We have heard the arguments of the learned counsel for the parties and also perused the record. Serious allegation of embezzlement of lacs of rupees deposited by different persons in their accounts was levelled against the respondent No.2, the detail of which has been given in the F.I.R., which prima facie makes out a case against the v petitioner. After the investigation challan was submitted against the petitioner, but the learned trial Court without framing the charge has acquitted the respondent on surmises and conjectures without considering that different witnesses were there to support the prosecution story into the allegations against respondent No.2. The report of the Handwriting Expert in the present case could not be a conclusive proof to prove or rebut the allegations against the respondent when there are other pieces of evidence to prima facie connect the respondent with the commission of crime. Merely because certain Account Holders, whose amount was allegedly embezzled by the respondent had sworn affidavits while exonerating him of the charge, the respondent could not be acquitted as affidavits cannot be considered legal evidence as is laid down in PLD 1977 Lah. 1261; 1995 MLD 1254 and PLD 1996 SC 83. Moreover, the prosecution has been deprived of their right to declare them hostile and cross-examined to fetch out the truth, if they really backed out from their earlier statements made before the police. The possibility cannot be ruled out that the respondent had tampered with the prosecution evidence and no benefit thereof could be given to him . The charge is framed under section 265-D, Cr.P.C.
Which is reproduced as under:-- "265-D. When charge is to be framed. If after perusing the police report or, as the case may be, the complainant, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused."
The above provision does not show that the affidavits of the witnesses exonerating the accused person can be made basis to hold that there is no ground for proceeding with the trial and as such provisions of section 265-K., Cr.P.C. Could not be applied in this case at the time of framing of charge only considering the affidavits of the witnesses. Along with the account holders there were also other pieces of evidence in the shape of statements of other bank employees as in fact the embezzled amount had become the property of the bank and its reputation would also have been spoiled that the employees thereof were defrauding with the Account Holders. As such the prosecution could not be knocked out in a slipshod manner without affording opportunity to lead the evidence to prove its case. As such we are of the opinion that the learned trial Court has committed glaring mistake and illegality through the impugned order, which is not sustainable in the eye of law.
5. We are not impressed by the contention of the learned counsel that in view of the provisions of section 417(2-A), Cr.P.C. This revision against acquittal order was not maintainable as the respondent was acquitted at the stage of framing of the charge, without providing opportunity to lead evidence in support of the allegations against the respondent and at the most only the case can be remanded for initiation of trial, but on the basis of the material no final verdict into. Guilt or otherwise of the respondent can be given. Clause (a) to subsection (4) of section 439, Cr.P.C.
Provides that in revisional jurisdiction finding of acquittal cannot be converted into conviction and if the appeal was brought under section 417(2-A), Cr.P.C. The finding of acquittal could not be converted into conviction as so far no evidence was recorded by the learned trial Court and even the charge was not framed. As such this revision petition is maintainable.
6. For the foregoing reasons, this revision petition is accepted, the impugned order of acquittal is set aside and the case is remanded to the learned trial Court for proceeding in accordance with law. Respondent No.2 shall also furnish bail bonds amounting to Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.