ABDUR RAHMAN FARUQ PIRZADA, J.--- By this criminal acquittal appeal under section 417(2), Cr.P.C.
Filed by the appellant, the impugned order dated 29-1-2008 passed by Special Judge, Anti- Corruption, Sukkur, has been assailed, by which the respondents/accused were acquitted under S.249-A, Cr.P.C. In direct Complaint No,55 of 2004.
2. The facts of the case as contained in direct complaint filed by appellant/complainant in the Court of Special Judge Anti-Corruption, Sukkur, on 8-10-2003, are reproduced as under:-- "Criminal Direct Complaint for offences under sections 161, 163, 167, 408, P.P.C., read with S.5(2) Act-II of 1947.
' The complainant above named respectfully submits his complaint against accused as under--
1. That the complainant is serving as primary school teacher at Government Primary School, Bagerji, Taluka Sukkur, District Sukkur, as such is public servant within the definition of section 21 P.P.C.; so also the accused are public servants, and this Hon'ble Court has jurisdiction to proceed against them and take cognizance of the complaint.
2. That as per directions of the Education Department through accused, complainant opened Saying Account No,2904 with National Bank of Pakistan, Bagerji Branch (0186) on 12-3-1995 and has been getting monthly salary through the said account.
3. That the accused despite being public servants are regularly taking bribe from centre Head Masters and usurping funds of school sanctioned by the Department for improvement of education/class rooms.
4. That the accused have been demanding and getting illegal gratification from teachers in the name of miscellaneous expenses. The accused asked the Head Master, Government Primary School Bagerji to collect Rs,500 from the salary of each teacher for the month of July, 2003 and remit it to them, but the complainant refused to pay the same, hence accused are annoyed.
5. That the accused in order to cause wrongful loss to the complainant and obtaining wrongful gain to them prepared forged D/sheet and the cheque in the name of complainant and have directly drawn the salary for the month of August, 2003 amounting to Rs,5318 from Main Branch, National Bank Limited Sukkur and criminally misappropriated the same collusively and with the abatement of each other instead of transferring the salary in the bank account of complainant.
Original copy of the ledger issued by the National Bank Limited Bagerji is submitted herewith as Annex-A.
6. That due to non-receipt of salary for the month of August, 2003 complainant enquired from Head Master Government Primary School Bagerji who informed that my salary has been drawn directly by accused for unknown reasons. Copy of D/sheet is submitted as Annex-B.
7. That the complainant approached ADO (Education) Sukkur on 12-9-2001 for payment of salary for the month of August, 2003 and submitted such written application which was endorsed to accused No,
1. Photostat copy of the same is submitted as Annex-C.
8. That accused jointly demanded Rs,1000 as on 22-9-2003 contribution for miscellaneous expenses as illegal gratification in presence of witnesses (1) Head Master Aijaz Ali Junejo (2)
Merajuddin alias Nazir Ahmed Junejo which were paid to accused No,1 through accused Nos.2 and 3 who distributed the same themselves . Both the accused asked complainant to return after two days for remittance salary.
9. As promised complainant with witnesses approached accused for payment of salary for August, 2003 and they have been keeping on false hopes, hence complainant filed complaint with Circle Officer ACE, Sukkur on 29-9-2003 out of no avail. Hence this direct complaint. Copy of complaint submitted before Circle Officer, Anti-Corruption Sukkur is filed as Annex-D.
PRAYER "The accused being public servants in collusion with each other and abatement have committed offences under sections 161, 163, 167, 408, P.P.C. Read with S.5(2) of Act-II of 1947 within the cognizance and jurisdiction of this Hon'ble Court, hence may be prosecuted/punished according to law and justice may be ensured to complainant."
3. As per impugned order, charge against the accused was framed on 16-4-2005, where after the complainant appeared for the first time in witness box on 19-5-2007, when his examination-in- chief was recorded and in view of the fact that his other witnesses were not present, he was not put to cross-examination by defence counsel. It was observed that after 19-5-2007, the complainant was given opportunity to produce his evidence, but he failed to do so. It was further observed that in direct complaint responsibility was laid upon the complainant to produce his evidence, and such reference was made by learned trial Court to the provisions of S.247, Cr.P.C. For acquittal of the accused, in case complainant failed to produce his evidence. The learned trial Court was of the view that the complainant being in habit of creating harassment had been sending applications to the High Court as well as honourable Supreme Court since the very date of filing direct complaint.
4. Learned counsel for the appellant has contended that from the date of filing of direct complaint onwards, the complainant and his witnesses attended the Court on various dates of hearing, but case was not proceeded for one reasons or the other. He has pointed out that since the date of framing of charge, the case was taken up on total 46 dates of hearing, out of which complainant remained in attendance on 44 dates of hearing. He has further contended that the P.Ws. Aijaz Ali and. Mairajuddin alias Nazir Ahmed also attended the Court on various dates of hearing. The learned counsel has taken the Court through the case diaries of learned trial Court which reveal that on 16-1-2006 complainant along with P.Ws. Aijaz Ali and Mairajuddin alias Nazir Ahmed were present but the presiding officer was on leave; on 26-8-2006 complainant along with same P. Ws.
Were present, but defence Advocate was called absent, as such case was adjourned; on 21-10- 2006 complainant along with same two witnesses were present, but again defence Advocate was absent. The learned counsel has pointed out to further dates of hearing also, when the complainant remained present, but due to some other factors other than any adjournment applications from the side of complainant, case was adjourned. After 19-5-2007 it has been stated that on 9-6-2007 the complainant was present, but adjournment application was moved by accused, on which account case was adjourned. However, on 30-6-2007 complainant was present, but he filed application for ,making correction in his deposition viz. Examination-in-chief. It was further pointed out that on 30-8-2007, summons were issued by learned trial Court to the witnesses, since at least two of the witnesses were official witnesses and such summons were issued by learned trial Court on application filed by complainant on the ground that the official witnesses may be called through Court summons.
5. Learned counsel for the appellant has discussed in detail the background of the case. He has contended that direct complaint was filed as long back as on 8-10-2003, whereafter the matter was sent to Circle Officer for enquiry. Subsequently, report was put up before learned trial Court, where after direct complaint was dismissed on 16-1-2004 on the ground that the main witnesses were not present. Being aggrieved, the complainant filed Criminal Revision No,10 of 2004 before this Court, and the case was remanded back for holding further enquiry vide order dated 9-4-2004.
Subsequently, preliminary enquiry was held but since the order was not being passed by learned trial Court for considerable period, as such Criminal Revision No,92 of 2004 was filed by complainant before this Court with the prayer that learned trial Court be directed to pass an appropriate order on the preliminary enquiry. Consequently, direction was given by this Court to learned trial Court to pass an appropriate order, where after direct complaint was brought on regular file.
6. Learned counsel for the.Respondents/accused, on the other hand, contended that the present acquittal appeal is not maintainable under the provisions of law, since no evidence had been produced before the trial Court and the final order was not passed on the basis of an evidence. He placed reliance on the case .Reported in 1997 PCr.LJ 1626 (Lahore) (S.B.) He further contended that the complainant had remained habitual of making various complaints of similar nature against different persons, and in present case also the complainant had falsely and malafidely involved the accused He has submitted that the case was pending trial since considerable period, but the complainant had continuously failed to produce his evidence before trial court and there was no other way out for the trial Court but to pass the impugned order of acquittal. He also pointed out to some discrepancies in the deposition of the complainant due to which his case cannot be given any credibility.
7. Learned Assistant Advocate-General has supported the impugned order, on the ground that complainant had continuously failed to produce his evidence before trial Court, as such acquittal order was, justified.
8. I have carefully considered the submissions made by learned counsel for the appellant as well as learned counsel for the respondents/accused and Assistant A.G. It is evident from the impugned order that the learned trial Judge was influenced by the provisions of section 247, Cr.P.C. For the sake of convenience, the contents of S.247, Cr.P.C. May be reproduced as under:-- "247. Non-appearance of complainant.--If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate, shall notwithstanding anything hereinbefore contained acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day: ' Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case: ' Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable."
9. The second proviso of S.247, Cr.P.C. Clearly lays down that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable. In the present case, penal sections 467 and 468, P.P.C. Are cognizable and non-compoundable offences, as such on the face of it the provisions of S.247, Cr.P.C. Will not be applicable in the present case.
10. I have perused the RPs of the case and case diaries.. Admittedly, since filing of direct complaint, complainant and P.Ws. Attended the Court on various dates of hearing. So far as' the attendance of complainant is concerned as stated, he attended the Court on 44 dates of hearing out total 46 dates of hearing since framing of charge. So also P.Ws namely PWs Aijaz Ali and Mairajuddin alias Nazir Ahmed attended the trial Court on some dates of hearing, although prior to 19-5-2007, when the case was adjourned at the behest of accused persons. Even subsequent to 19-5-2007 on 9-6- 2007 complainant was present but the adjournment application was moved by accused, as a result of which the case was adjourned. It is also pertinent to note that on D 30-8-2007, on an application moved by complainant, the learned trial Court had agreed to issue summons to all the witnesses of the complainant, on the ground that at least two of the witnesses were official witnesses and their attendance could not be procured exception through summons by the Court. It is hard to understand as to why the learned trial Court did not consider this aspect of the case, in that when it had agreed to issue summons to the official witnesses, then the same Court should have pursued the matter to its logical end.
11. I would not like to enter into controversy with regard to the background of the case as pointed out by learned counsel for the complainant, and motives behind delay in proceedings of direct complaint, but one thing is established that the complainant was keen to proceed with the case, as such he had approached this Court on two E occasions. His Criminal Revision No,92 of 2004 was filed with specific prayer that the learned trial Court was not a passing an appropriate order on the enquiry in spite of passage of considerable period, as such directions were issued for appropriate order to be passed. Only after the directions given by this Court, the order was passed by learned trial Court and direct complaint was brought on file.,
12. Another aspect of the case which may be considered is that examination-in-chief of complainant was recorded as early as on 19-5 2007, and subsequently on some occasions complainant was present along with one witness, but still case was adjourned on the ground that F complainant had not brought all his witnesses. In the given circumstances, if the trial Court felt that the case was being adjourned unnecessarily then the evidence of complainant along with his one witness ought to have been recorded.
13. With regard to the question of maintainability of this appeal, it may suffice to say that this appeal is filed under S.417(2), Cr.P.C. Apparently, this provision of law is applicable to any order of acquittal, regardless of the fact as to whether evidence was recorded or not. I have gone through the case-law cited by learned counsel for the respondents/accused which pertains to a case which was outcome of F.I.R. Registered at police station and in that case some evidence was recorded. In the present case although the evidence of the witnesses was not recorded and apparently order is not passed on the merits of the case, but nevertheless this order by all means is final order culminating in the acquittal of the accused. Moreover facts of the present case are distinguishable from the facts of the cited authority, since in the present appeal only prayer is made for remanding the case to the learned trial Court for trial according to law, as such with profound respects for the Hon'ble Lahore High Court I do not agree with the cited authority.
14. On the point of maintainability, my view is fortified by the case of Faiz Muhammad v. Abdur Raoof and others as reported in 1999 PCr.LJ 864, in which it was laid down as under:-- "Under section 265-K, Cr.P.C. When the application is accepted, the accused persons are deemed to have been acquitted of the charge and taking the impugned order as an order of acquittal, this petition under section 417(2), Cr.P.C. Was moved for special leave to appeal which, as observed above, has been treated as appeal and is being disposed of."
' In the same ruling, it was further held as under:-- "Since section 265-K, or as the case may be section 249-A, Cr.P.C. Envisages that any order passed under these sections has the force of acquittal, the learned trial Court is under legal obligation to consider and assess the material which can be treated or accepted as evidence."
' In the same ruling, it was further laid down as under:- "Learned counsel for the appellant has raised the plea that an order of acquittal has a sanctity and therefore should not be lightly interfered with. It is true that once an order of acquittal is passed, the same is not lightly to be interfered with but I cannot remain oblivious of the fact that an order of acquittal which is passed by a Court after recording entire evidence and an order passed under section 265-K or 249-A, Cr.P.C. Cannot be treated similar and identical. An order passed under section 265-K, Cr.P.C. Is based on mere probabilities, therefore, sanctity which is ordinary attached to an order of acquittal in my view cannot be attached with strictness to the order passed under section 265-K or 249-A, Cr.P.C."
15. Learned trial Court had finally acquitted the accused under section 249-A, Cr.P.C., mainly on the ground of non-appearance of the prosecution witnesses. Firstly, it has to be seen as to whether the learned trial Court had taken best efforts and had granted sufficient time for procuring the prosecution witnesses (including official witnesses); secondly, it has also to be seen, if the impugned order under section 249-A, Cr.P.C. Was within the ambit of law and justice. The reference may be made to the case State v. Muhammad Afzal and another as reported 2000 MLD 220, in which the Hon'ble Lahore High Court laid down as under:-- "The non-appearance of the prosecution witnesses cannot be said to be due to the laxity of the complainant, rather, the learned Magistrate proceeded in the matter in perfunctory manner. This fault/loose control/non-serious working of the learned Magistrate should not damage the case of the prosecution for the purpose of the acquittal of the accused under section 249-A, Cr.P.C. It is settled maxim of Jurisprudence that no doubt an accused is a favourite child of law, but keeping in view the shape of scale and justice, the complainant is also not denied of justice of the Court.
' In view of the what has been discussed above, the order of the learned Magistrate, dated 10-7- 1990, regarding the acquittal of the respondents having been passed in mechanical fashion, without independent application of mind to the facts of the case is hereby declared to be nullity in the eyes of law and is set aside as the same is passed in violation of the law laid down by the Hon'ble Supreme Court in following judgments:-- ' PLD 1970 SC 173 and PLD 1964 SC 829.
' The impugned order is also in violation of mandatory provisions of section 24-A of General Clauses Act, as the learned trial Court failed to pass reasoned judgment, therefore, the same is set aside being not sustainable in law. The case is remanded to the trial Court with the direction that he should take up the proceedings afresh from the stage at which the order, dated 10-7-1990, was passed under section 249-A, CrP.C."
16. In the case of Muhammad Sharif v. Jamshed Ali and others as reported PLD 1996 Lahore 471, it was laid down as under:-- "Muhammad Sharif complainant has appeared before this Court on every date of hearing and he has taken up the plea that he appeared before the trial Court on every date of hearing, but his presence was not marked. Thus the non-appearance of the prosecution witnesses cannot be said to be due to the laxity of the complainant. Rather the Presiding Officer(s) proceeded in the matter in perfunctory manner. This is with respect to the working of the Presiding Officers and is one aspect of the matter.
' The other aspect of the matter is that in the aforesaid stage of affairs when the prosecution witnesses do not appear in the witness box as their attendance is not procured by the Presiding Officer in ordinary manner or through adopting the coercive methods; section 249-A of the Code of Criminal Procedure is not applicable. That fault/loose control/non-serious working of the Presiding Officer should not damage the case of the prosecution for the purpose of the acquittal of the accused under section 249-A, Code of Criminal Procedure. I am tempted to express that no doubt an accused is the favourite child of law, but keeping in view the shape of scale of justice the complainant is also not devoid of the justice of the Court. As I read the provisions of section 249-A of the Code of Criminal Procedure, a Magistrate can only acquit the accused where he considers either that the charge is groundless or that there is no probability of the accused being convicted of any offence. The trial Magistrate did not conclude, rather it was not possible for him to have concluded that the charge was groundless or that there is no probability of the accused being convicted of any offence in the circumstances of this case because the impugned order had been summarily passed upon a denial of opportunity to the prosecution to produce the prosecution witnesses whose attendance had to 'be procured by the Presiding Officer by adopting all the legal methods. Such denial amounted to the denial of justice itself. My view is that the impugned order fell far from the ambit of section 249-A of the Code of Criminal Procedure in the circumstances of the material available. Thus the order under appeal represents an absolutely illegal exercise of jurisdiction at the cost of justice itself. Section 249-A of the Code of Criminal Procedure has been invoked by the trial Court without any legal justification for the purpose of acquittal of Jamshed Ali respondent and I hold that the impugned judgment of his acquittal cannot be sustained."
17. In the case of Nazir Muhammad v. Gawa and 3 others as reported 1988 PCr.LJ 2309, it was held as under:-- "In the absence of any material on the record to hold that the witnesses were deliberately avoiding to appear in Court, the acquittal under section 265-K, Cr.P.C. Is perverse and has caused miscarriage of justice. Accordingly, I have no hesitation to set aside the orders dated 9-12-1982 delivered by the learned Additional Sessions Judge acquitting the respondents under section 265- K, Cr.P.C. This case shall now be remanded to the learned Sessions Judge, Rajanpur, who shall hold the trial, so that the same is concluded within a period of six months."
18. In the attending circumstances, in my view the impugned order was unwarranted by facts as well as law as such impugned order is set aside. The case is remanded back to learned trial Court for trial according to law. However, since the case is old and pertains to year, 2003, as such learned trial Court is directed to proceed with the case expeditiously accordingly to law. Both the parties are directed to attend the trial Court on 5-6-2008.
' In above terms this criminal acquittal appeal is disposed of.