This appeal under Section 417(2A), Cr.P.C. is directed against judgment dated 10.1.2009 passed lay the learned Special Judge, Anti-Corruption, Multan, whereby Respondents No, 2 to 6 were acquitted. Respondents No, 5 & 6 (Ghazanfar Ali and Muhammad Aslam Shah) have passed away so it has abated to their extent.
2. Briefly , the prosecution case is that Ch. Abdul Ghafoor , Zonal Chief, Punjab Provincial Cooperative Bank Limited, Multan Zone, vide letter dated 15.3.2000, made a complaint to the Additional Director , Anti-Corruption Establishment, Multan, that Muhammad Aslam, Manager , Makhdoompur Pahoo ran Branch (absconding since 10.3.2000), had misappropriated huge amount of public money with the connivance of other staff members which had caused loss to the tune of Rs. 10,39,000/- to the bank. They also stole demand draft forms Bearing No, 072270 to 072275 and used the same to embezzle an additional sum of Rs. 4,38,900/-. The Complainant added that. these figures were tentative. A special audit of the branch was in progress which would determine the actual loss. On the basis of the said complaint FIR No. 13/2000 dated 24.4.2000 was registered at Police Station ACE, Khanewal, for offences under Sections 409, 420; 467, 468, 474, 161, PPC read with Section 5(2) of the Prevention of Corruption Act, 1947. The ACE investigated the case. The Branch Manager , Muhammad Aslam, could not be arrested and was declared a proclaimed offender . During the investigation Respondents No, 2 to 4 and Respondents No, 5 & 6 (since deceased) were found. guilty . Report under Section 173, Cr.P.C. was submitted accordingly .
3. On 26.03.2005, the learned Special Judge indicted the Respondents. They professed innocence and - claimed trial. It is important to note that before the framing or charge Respondent Ghazanfar Ali moved an application under Section 249-A, Cr.P.C. for his acquittal which was dismissed by the learned Special Judge vide order dated 8.12.2004. He filed, Crl. Revision No, 42/2005 there against before this Court which was dismissed in limine.
4. The prosecution cited 46 witnesses in the calendar of witnesses. Out of them it examined 25 till 30.10.2005 after which Respondent Ghazanfar Ali filed second application under Section 249- A, Cr.P.C. The learned Special Judge dismissed it as well vide order dated 21.12.2005. The trial progressed at a slow pace afterwards and only four more witnesses were recorded till 22.12.2008. Eventually , vide judgment dated 10.1.2009, he acquitte d the Respondents holding that, firstly , delay in disposal of criminal cases constituted an abuse of the process of Court.
The prosecution could not complete its evidence even after four years which could not be tolerated. Secondly , there was no probability of the Respondents being convicted. Aggrieved, the ' Appellant has filed the instant appeal before this Court.
5. Mr. Muhammad Anwar Awan, Advocate, who represented Respondents No, 2 & 4, raised a preliminary objection regarding maintainability of this appeal. He argued that Special Judges are appointed under Section 3 of the Pakistan Criminal Law (Amendment) Act, 1958 (the "Amendment Act"), to take cognizance of the offences punishable under the Prevention of Corruption Act, 1947, and other penal offences mentioned in the Schedule thereto. Appeal against the judgment of conviction by the Special Judge is filed under Section 10(1) of the Amendment Act before the High Court whereas under Section 10(2) only the public prosecutor under the direction of the Federal Government is competent to prefer an appeal against an order of acquittal. Neither the Provincial Government nor the complainant/private party was competent to file such appe al. He maintained that right of appeal given to an aggrieved person under Section 417(2A), Cr.P.C. against the order of acquittal did not extend to private persons in cases decided by the Special Court regarding a scheduled offence. He placed reliance on Ashiq Muhammad and another v. Khuda Bakhsh and 5 others (PLD 1998 Pesh. 68), Abdul Qayyum v. Aziz-ur -Rehman Shah (2004 PCr.LJ 422), Mian Khalid Raul v. Ch. Muhammad Saleem and others (PLD 2006 Lah. 147), and The State v . Abdul Qayyum and another (201 1 PCr .LJ 252)..
6. The learned counsel for the Appellant, Ch. Khalid Mehmood Arain, Advocate , contended that the aforementioned objection was misconceived and based on misconstruction of law. He argued that Section 10(2) of the Amendment Act did not curtail the right of the aggrieved (private) person granted under the general law, i,e, Section 417(2A), Cr.P.C., to assail an order of acquittal. He relied upon The State u. Bashir Ahmad and 6 others (2000 YLR 1634 ), Federal Government of Pakistan through Director , Intelligence and Investigation, Customs and Excise v. Akhtar Javed (2002 YLR 2444 ), Rasool Khan and 9 others v. Haji Banaras Khan and 5 others (2002 PCr.LJ 286), and Hazoor Bakhsh v . Riaz Ali Abbasi and another ( PLD 2003 Kar . 340 ).
7. Section 10 of the Amendment Act deals with appeal, revision and transfer of cases. Its relevant portion reads as under:
10. Appeal, revision and transfer of cases.--( 1) An appeal from the judgment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge and the same Court shall also have powers of revision.
(2) Notwithstanding the provisions of Section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by the Federal Government under Section 3, in which such Special Judge has passed an order of acquittal, the Federal Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid.
8. The question as to whether a private person aggrieved of an order of acquittal passed by a Special Court could file an appeal came up for consideration in a number of cases but there were divergent rulings. Eventually the issue was authoritatively settled by the Hon'ble Supreme Court of Pakistan in Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another (PLD 2015 SC 348). It reasoned that Section 10(1) creates a right of appeal for any aggrieved person from the judgment of the Special Court whether it is set up by the Provincial or the Federal Government under Section 3 of the Amendment Act. Hence, no distinction can be made or the right of appeal taken away from any aggrieved person whether such appeal is filed against acquittal or conviction. Section 10(2) cannot be read to limit the right of appeal against an order of acquittal recorded by the Special Court to the Federal Government because it is at the most a corollary to the general right of appeal contained in Section 10(1). The Apex Court ruled: "Consequently it would be quite appropriate to observe that any aggrieved person whether it be the Federal or the Provincial Government or an accused or a Complainant could approach the High Court in appeal against either an order of conviction or acquittal or for that matter for the purpose of enhancement of a sentence passed by any Special Judge appointed under the Act 1958 and as much should be read into Section 10(1) of the Act. In this regard, it may also be observed that perhaps this was the legislative intent, as Section 10(2) of the Act was added to cater for the right of the Federal Government to file an appeal against acquittal as such right was not given to it under Section 417, Cr .P.C."
9. Interestingly , the above-mentioned judgment was delivered in appeal against the judgment passed by this Court in Criminal Appeal No, 688/2004 which is reported as PLD 2006 Lah. 147 (supra) and relied upon by the learned counsel for Respondents No. 2 & 4. In this view of the matter , the objection regarding maintainability of this appeal is overruled.
10. Now I turn to the merits of the case. The learned counsel for the Appellant contended that law of limitation did not prescribe any time-line within which a criminal Court must conclude a trial and that its failure would necessarily entail acquittal of an accused. In every case delay did not constitute abuse of process of law. The Court must take stock of the circumstances which caused the delay before quashing the proceedings. The learned counsel argued that in the instant case the delay was not attributable to the prosecution as it did not seek a single unnecessary adjournment. The learned Special Judge had not adverted to this aspect while passing the impugned judgment. He further contended that when FIR No, 13/2000 was lodged it was estimated that the Respondents had embezzled Rs. 14,77,900/- but after the Special audit of the branch it was found that the actual amount was around Rs.
46,00,000/-. The learned Special Judge had relied on certain portions of the deposition of PW-26 Abdul Ghafoor to hold that the charge against the Respondents was groundless which was erroneous. He did not consider the testimony of other 28 witnesses and the bulk of documentary evidence they had adduced which supported the prosecution ease and adequately showed that they had committed the alleged offence and was sufficient to record conviction against them.
11. The learned Deputy District Public Prosecutor supported this appeal and adopted the arguments of the learned counsel for the Appellant.
12. On the other hand, the learned counsel for the Respondents controverted the aforementioned contentions.
They contended that the Respondents were suffering the agony of criminal proceedings since the year 2000. They faced investigation for five years and then trial for another four years until the learned Special Judge passed the impugned judgment and acquitted them. They argued that it was a mockery of law to allow criminal cases to proceed for such a long time. They added that even though 29 witnesses were examined in the instant case, there was not an iota of incriminating evidence against the Respondents. PW-26 Abdul Ghafoor , who carried out the special audit of the branch, had rather proved that the .charge against them was groundless.
13. A speedy trial benefits both the accused and the prosecution and helps in providing reasonably prompt administration of justice. According to H.L. Dattu J., it serves a three-fold purpose: firstly , it protects the accused against oppressive pre-trial imprisonment; secondly , it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and, lastly , it protects against the risk that evidence will be lost or memories dimmed by the passage of time, thus impairing the ability of the accused to defend himself.
14. The right to a speedy trial is a derivat ion from a provision of Magna Carta. This principle was incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of the United States of America which reads: " In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial...." In India, the concept of speedy trial is read into Article 21 of the Constitution as an integral part of the fundamental right to life and liberty . Reliance is placed on Hussainara Khatoon and others v. Home Secretary , State of Bihar , Patna (AIR 1979 SC 1360) and Sudarshanacharaya v. Purushottamacharya and another (AIR 2012 SC 3854). In Pakistan as well the right of an accused to have a speedy trial is duly recognized. A Division Bench of this Court in the case Ghulam Qadir Khan v . The State [PLD 1963 (W .P.) Lahore 32] ruled as under: "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 might1 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 harassment 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 process of the Court, the proceedings may be quashed."
The Hon'ble Supreme Court of Pakistan approved the above statement of law in State through Advocate-General, N.W.F.P., Peshawar and others v . Gulzar Muhammad and others ( 1998 SCMR 873 ).
15. However , the most intriguing question is whether delay per se entitles an accused to acquittal. In the United States there is the Federal Act called the Speedy Trial Act, 1974, which sets out timelines for completing the various steps of a federal criminal prosecution. Similarly , Rule 48 of the Federal Rules of Criminal Procedure grants the trial Court discretion to dismiss cases that are not brought to trial promptly . Nevertheless, all delays are not fatal for the prosecution. 18 US Code 3161 makes certain statutory exclusi ons for determining whether the prescribed time-limits have been met. For example, it excludes the time between the filing of a motion and the conclusion of the hearing on that motion (whether or not a delay in holding that hearing is reasonably necessary), delays caused by unavailability of the accused or an essential witness, delays attributable to a co-accused and delay resulting from an interlocutory appe al. It is noteworthy that the trial Court cannot dismiss a case mechanically when a time limitation is violated. The sanction of dismissal may be with or without prejudice to re-prosecution. In assessing whether dismissal should be with prejudice, the Court must consider the seriousness of the offence, the circumstances leading to dismissal, and the impact that re-prosecution would have on the administration of justice. In United States v. Taylor 1487 U.S. 326 (1988)1, the Supreme Court held that trial .Court must examine each statutory factor in deciding to dismiss charges with prejudice. In the said case the Supreme Court found that a minor violation of the time limitations of the Speedy Trials Act did not justify dismissal with prejudice of an indictment charging serious drug offences.
16. As already noted, India also recognizes that there is societal interest in providing a speedy trial. It is an "important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself."
However , in Abdul Rehman Antulay etc. u. R.S, Nayak and another (AIR 1992 SC 1701), a Constitution Bench of the Supreme Court of India held that delay in conclusion of criminal trials may be occasioned by a host of factors.
Therefore, the question as to whether there is any delay and whether it has infringed an accused's right of a speedy trial should be determined with reference to the circumstances of each case. It ruled: "While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevail ing local conditions and so on - what is called, the systematic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well; but a realistic and practical approach should be adopted in such matters instead of a pedantic one."
17. Again, in Kartar Singh v . State of Punjab (1994 PCr .LJ 3139), it was observed: "Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a ... balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whethe r the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay , (2) the justification for the delay , (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay . However , the fact of delay is dependent on the circumstances of each case because reasons for delay will vary, such as delay in investigation on account of the widespread ramification of crimes and2 3 its designed network either nationally or internationally , the deliberate absence of witness or witnesses, crowded dockets on the file of the Court etc."
18. The same principles obtain in Pakistan. The delay tolerated varies with the complexity of the case, the manner of proof as well as the gravity of the offence. There cannot be any universal rule in this regard. The Hon'ble Supreme Court reiterated this statement of law in the case of Gulzar Muhammad (supra) as follows: "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 undesirable 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 that occurs during the trial."
19. Coming to the present case, it is observed that the Respondents were indicted on 26.3.2005. There were a total of 74 dates of hearing after the charge was framed. The prosecution cited 46 witnesses in the calendar of witnesses out of whom it examined 25 till 30.10.2005. After that Respondent Ghazanfar Ali filed an application under Section 249-A, Cr.P.C. which the learned Special Judge dismissed vide order dated 21.12.2005. The trial progressed at a very slow pace from then onwards and the testimony of only four more witnesses was recorded until 10.1.2009 when the impugned judgm ent was passed and the trial was closed. I have carefully examined the Order Sheet of the learned Special Court and have found that the delay was occasioned primarily due to the accused. While fixing responsibility for the delay the Court would not make a mathematical calculation as the learned counsel for Respondents No, 2 to 4 attempted to suggest. It would rather take into account the overall conduct of the accused and the dilatory tactics employed by them and their counse l to drag the case. They cannot be permitted to take premium of their on wrongdoings. Any other course would destruct the whole system.
20. The learned counsel for Respondents No, 2 to 4 submitted that at one stage this Court issued a direction to the learned Special Judge to conclude the trial of the case within four months. He contended that non-compliance with the said direction also created a right in favour of Respondents No. 2 to 4 to seek acquittal and the impugned judgment could be maintained on this ground as well. I am afraid, this contention has no force. Indeed, the High Court can issue directions to the subordinate Courts under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, and their non-compliance may have consequences for the Presiding Officer concerned, it does not create any right in favour of the accused as argued.
21. The learned Special Judge was also persuaded to acquit the Respondents on the ground that the evidence produced by the prosecution did not connect them with the commission of the alleged offence. Perusal of the impugned judgment reveals that he recorded the said finding on the basis of certain selected portions of the deposition of PW-26 Abdul Ghafoor who carried out the special audit of the branch. He conveniently ignored Audit Report Exh.PW -25/A and the following portion of his examination-in-chief which Respondents No, 2 to 4 could not rebut during cross-examination: "We had invited the account holders to confirm their balance and on scrutiny of their passbooks, it was revealed that the balance record in the passbooks were different from the balance on the bank accounts and so the total amount of misappropriation of accounts came out to be Rs. 46,16,776/-Manag er Muhammad Aslam, Saif-ur- Rehman Loan Clerk, Hasnain Asghar Cashier , Muhammad Nawaz Clerk, all were involved in the fraudulent withdrawal of funds from the bank who misappropriated the amount deposited with the bank by account holders.
Ghazanfar then serving Sub-Inspector Cooperative Makhdoompur Pahoran was responsible for approving bank loans for cooperative societies, and he prepared bogus loan applications on behalf of the societies and procured loans from the bank. Account No, 35 was maintained by Aslam Shah account holder who in collusion with the Bank Manager withdrew Rs. 9,80,000/- from such account, whereas there was no corresponding balance in such account."
22. This is not all. The learned Special Judge did not consider the evidence furnished by the other 28 witnesses and a plethora of documents they adduced. It is important to note that on .21.12.2005 the learned Special Judge dismissed an application under Section 249-A, Cr.P.C. filed by Respondent Ghazanfar Ali expressly holding that sufficient material supporting the prosecution case was already available on record. The said order was never challenged.
23. In view of what has been discussed above, Crl. Appeal No, 70/2009 is allowed. The impugned judgment is set aside and the case is remanded to the Special Court which shall proceed with the trial from the stage when it was passed and conclude the same within the shortest possible time. Ranjan Dwivedi v. C.B.I., through the Director General (AIR 2012 SC 3217). Speedy Trial Act-Wikipedia https://en.m.wikipedia.org. Ibid.