1. ' SAJJAD Au SHAH, J.-This acquittal appeal has been filed against the judgment dated 5th June, 1976 of learned Additional City Magistrate No, 4 Karachi whereby respondent has been acquitted under section 245, Cr. P. C. In a case in which he was being tried for offences under sections 420/468 and 471, P. P. C.
2. ' Brief prosecution story is that respondent was Accountant in a private firm named and styled as "Zaki Brothers". It is alleged that cheque book and account books used to remain in the custody of respondent and he encased some cheques for total amount of Rs, 24,000 unauthorized and fraudulently by forging the signature of complainant Muhammad Taqi who is the partner of the said firm, which deals with manufacture of fire-bricks in S. I. T. E. Area. It is also the case of prosecution that the respondent used to write down cheques as ordered by the complainant and get his signature before drawing them from the bank and since the cheque book used to remain in the custody of the respondent, he wrote down some cheques and forged the signatures of the complainant, drew the amount from time to time which came to the tune of Rs, 24,000 and misappropriated the same. After verifying these facts from the concerned bank, that is, Union Bank Limited, Sher Shah Branch, Karachi, the complainant filed F. T. R. On 6th March, 1973 at police station S. I. T. E., Karachi. After necessary investigation interim challan was presented in the Court on 31st March, 1973. The case was adjourned from date to date as prosecution witnesses were not available and ultimately vide judgment dated 5th July, 1976, the respondent was acquitted under section 245, Cr. P. C.
3. ' The impugned judgment was assailed on several grounds including the one that it is not acquittal on merits and the respondent had committed a serious offence of forgery and misappropriation and has cheated the complainant and the learned trial Court was not justified to acquit a respondent on the solitary ground of delay. It was also contended that the charge was framed on 10th June, 1976 and after that no opportunity was given to prosecution witnesses and the acquittal order was passed on 5th July, 1976. It was submitted that it was incumbent upon the trial Court to have issued coercive process if the attendance of the witnesses could not be procured by the ordinary process.
4. ' We have heard the learned' Advocates appearing for each side and have looked into the record.
5. No doubt the charge in the case was framed on 10th June, 1976 and after that only one adjournment was granted and finally on 5th July, 1976 the respondent was acquitted. The perusal of the order sheet in the record of the trial Court shows that the interim challan was presented in the Court on 31st March, 1973. The case was adjourned to 2nd April, 19.73 for submission of final challan. From that date 5th July, 1976 when the respondent was acquitted the case was pending for a period of about three years during which it was adjourned on 56 occasions. After 31st March, 1973 when interim challan was presented, nine dates were given for submission of final challan which was ultimately submitted before the Court on 18th August, 1973. Therefore on 17th September, 1973 complainant Muhammad Taqi was present but the case was adjourned to 11th October, 1973 and the complainant was absent and adjournment for one day was sought by the Advocate for the complainant who was assisting the prosecution to produce him on the next date. The case was put off to 13th November, 1973. On that date the complainant was absent and other witnesses were also absent hence the case was adjourned to 15th December, 1973. On this date also the complainant though served was absent. The case was adjourned to 31st January, 1974. The complainant was not present. The case was adjourned to 26th February, 1974. On which date also complainant was absent. Thereafter four dates were given but complainant was absent though served. On 23rd May, 1974 the Court issued bailable warrants in the sum of Rs, 200 against the complainant because he was absent in spite of the fact that he was served. The complainant on that date appeared in the Court after the case was adjourned. Thereafter on 19th June, 1974 the case was transferred to the Court of S. D. M. Harbour. The case was again put off to 26th June, 1974 and on that date also no P. W. Was present. The order sheet of the trial Court shows that after 15th December, 1973 when the complainant appeared for the first time in all 27 adjournments were granted because of nonattendance of complainant. The complainant finally appeared before the trial Court on 2nd August, 1975. Thereafter on the next date, that is, 7th August, 1975 the complainant was present and was bound down for the next date the complainant remained absent though bound down. Finally on 3rd September, 1975 complainant appeared in the Court and was examined. Examination-in-chief could not be completed for want of documents. The case had to be adjourned and the complainant was bound down. The case was adjourned to 13th September, 1975 and the complainant was bound down. On this date the complainant was present but not examined at the request of P. S. I. And was again bound down and the case was put off to 24th September, 1975 for further evidence. On this date his evidence was recorded further but examination-in-chief could not be completed for want of some other documents such as counterfoils of cheques. The case was put off to 18th October, 1975 and the complainant remained absent. Fresh summons were issued against the complainant and the case was adjourned to 11th November, 1975. No P. Ws. Were present on that date and the process were repeated as before. The case was adjourned to 22nd December, 1975 and on that date also no P. Ws. Were present.
6. Thereafter two more dates were given by the Court but still the P. Ws. Did not attend the Court. It may be mentioned here that up to 22nd January, 1976, in all the case was adjourned on 50 occasions and the respondent had attended the hearings on all the dates. On 24th March, 1976 the respondent applied for adjournment on the ground that he was operated upon and he had produced medical certificate which is on the record. At the request of the respondent the case was further adjourned on three occasions. The respondent appeared on 10th June, 1976 and on that date the accusation was read over. It may be pointed out here that the charge was framed against the respondent on incomplete examination. In-chief of the complainant which was left in the middle on 24th September, 1975 for want of counter-foils of cheese. Thereafter the case was adjourned to 26th June, 1976 and the process was issued but neither complainant nor other witnesses appeared. Finally on 5th July, 1976 impugned order was passed. The order-sheet shows that the case was adjourned 56 times for the reasons specifically mentioned above. It is quite obvious that except for two 'or three dates which were sought by the respondent all other dates were given because of non-attendance of P. Ws. And complainant. The case had lasted for more than three, years and still no material progress was in sight and the prosecution' witnesses were not interested in the completion of proceedings. In these circumstances we find the impugned order to be justifiable. There is nolv provision for discharge in the Criminal Procedure Code hence the only ' remedy available is that of acquittal. The learned Court has acquitted the respondent under section 245, Cr. P. C. Which provides for acquittal after taking the evidence referred to under section 244 and after examination of the accused, if he is found not guilty. Section 249-A, Cr. P. C.
7. Empowers the Magistrate to acquit the accused at any stage of the proceedings after, hearing the prosecutor and the accused and for reasons to be recorded, if he considers that the charge is groundless or that there is no probability of accused being convicted of any offence. This section is more appropriate in the instant case and it appears that the intention of the learned Magistrate was to acquit the respondent under this section on the ground that there was no probability of the respondent being convicted of any offence for the reason of inordinate delay and lack of interest of the prosecution witnesses to have their evidence recorded in the proceedings. Tile fact that the acquittal was not recorded under section 249-A, Cr. P. C. Is mere omission which is procedural in nature and has not occasioned a failure of justice, as such is covered under section 537, Cr. P. C.
8. And on that ground alone the finding of the trial Court cannot be reversed or altered.
9. ' In these circumstances, we find no substance in this appeal which is hereby dismissed.
10. Appeal dismissed.