MRS. RASHIDA ASAD, J.---This judgment shall dispose off instant appeal filed by the appellant under section 417(2-A) of the Code of Criminal Procedure, 1898, (hereinafter the Code) being aggrieved by the order dated 03.12.2014, passed by the Judicial Magi strate V, Karachi, East, whereby the Respondents were acquitted under section 249-A of the Code in case FIR No. 337/ 201 1 dated 30.08.201 1 (Cr. Case No. 464/201 1) under sections 420/406/34, P.P.C. at Police Station New Town, Karachi. The appellant was Administrator of the Jinnah Medical and Dental College patronized and administ ered by S.M. Sohail Trust. The Respondents (accused persons) were employees of the College and staf f of Accounts Branch.
2. The prosecution's case in brief is that on an audit of the Account Branch for the period of two years i.e 2009 to 2011 found some financial irregularities and loss of certain amounts, collected by the college/hospital from the daily patients, annual admissions and examination fees from the students. The respondents who were custodians of amounts and record, were told to produce entire record for reconciliation but instead of production of record they deserted and failed to produce the record. On reconciliation a short fall of Rs. 17,698,758.00 was found, which was believed to have been embezzled by the respondents and as such the aforesaid FIR was lodged under sections 420/406/34 of the Pakistan Penal Code (P .P.C.).
3. After usual investigation, the charge sheet under section 173 of the Code was submitted for trial of the respondents and after fulfillment of due formalities the charge was framed.
4. The evidence of the appellant/complainant was recorded. Evidence of PW-2 was partially recorded and then an application for production of certain record was filed on behalf of the appellant which was dismissed.
5. Eventually , the respondents filed application under section 249-A of the Code which was allowed and the Respondents were acquitted.
6. The learned counsel for the appellant vehemently argued that the impugned order is perverse, bad in law and as such the same is not sustainable. The learned counsel further argued that delay in trial is hardly a ground for acquittal of the respondents. Per learned counsel the impugned order amounts to denial of opportunity to the prosecution to prove its case which emanates to injustice and, therefore, the impugned order is liable to be set aside. The learned counsel relied upon case law 2019 PCr.LJ Note 72, 2018 YLR 1695 , PLD 2016 SC 55 and 2014 PCr .LJ 8 .
7. The ratio decidendi of all the citations is that a criminal case is to be disposed off after recording of prosecution evidence, statement, of accused under section 342, Cr .P.C., and hearing of arguments.
8. Learned counsel for the respondents, conversely , argued that impugned order is in accordance with the law and the appellant could not point out any discrepancy and/or illegality . Per learned counsel the trial court is vested with adequate power under section 249-A, Cr.P.C., to acquit any accused at any stage. The learned counsel further argued that charge against the responden ts is defective as no person can be tried simultaneously for the offences under sections 420 and 406, P.P.C., and as such there is no probability of the respondents being convicted in the case, therefore, the jurisdiction exercised by the learned trial court for acquittal of the respondents meets the ends of justice. Per learned counsel the appeal is meritless and liable to be dismissed.
9. Learned APG supported the appeal and prayed for recalling of the impugned order as it amounts to throttling of prosecution right to prove charge by producing evidence of all the witnesses named in the calendar .
10. Heard the learned counsel for the appellant, respondents and APG and perused the record. There seems to be no cavil that court of a Judicial Magistrate is vested with adequate jurisdiction/power to acquit an accused at any stage if the charge is groundless, there is no probability of the accused being convicted and as such continuation of proceedings would amount to abuse of process of law. To consider a case for acqu ittal within four corners of ambit and provisions of section 249-A, Cr.P.C., the material submitted in support of charge sheet has to be looked into.
The trial court is supposed and obliged to examine all the evidence and material before taking cognizance means framing of charge and if the accused does not plead guilty while screening through the proceedings under section 243 Cr.P.C., the court of a Magistrate has to follow procedure provided and stipulated under section 244 of the Code which is as under:- "244 Procedure when no such admission is made. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution , and also to hear the accused and take all such evidence as he produces in his defence. (bold and underlined for emphasis)
Provided that the Magistrate shall not be bound, to hear any person as a complainant in any case which the complainant has been made by a Court.
(2) ......................................
(3) ......................................
11. What looks from the bare perusal of the above section of the Code is that in case of denial of charge by the accused "the Magistrate shall proceed to hear the complainant" (if any), and take all such evidence as may be produced in support of the prosecution " which means that normally the provisions of section 249-A, of the Code shall sparingly be used and further if the case strictly falls within four corners of the provision, and suffering of agony of trial and/or absence of possibility or legal impediment of conviction of two sections of P.P.C., at one trial, is not a ground to exercise powers vested under section 249-A, of the Code.
12. On a careful examination of the provisions of Chapter XX and XXII-A, of the Code, which deals with trials, respectively , by Magistrate and High Court/Courts of Session, it reveals that the legislators were conscious about difference of powers of the said forums as the High Court and the Court of Session. Vide section 242 of the Code, acts like when the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and shall be asked whether he admits that he has committed the offence with which be is charged but for a trial by the High Court or Courts of Session, such court is required to peruse the police report, as the case may be, the complaint, 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; means on perusal of the report, documents and statements the court is required to form opinion as to the existence of ground for proceedings Trial and in case of contrary opinion the court can discharge the accused. Power of discharging the accused at the stage of taking cognizance and framing of charge is not available to court of Magistrate and as such the provisions of section 249-A, of the Code are just enabling and such discretion is to be exercised in a judicial manner; court is not expected to act mechanically to circumvent proceedings of trial after framing of charge so frequently on flimsy or illusory grounds under the garb of power vested under section 249-A, of the Code.
13. Now to appreciate that if the impugne d order fulfills the legal touchstone, re-production of the operative part of the order would be beneficial which is as under:- "The prosecution, in order to prove its case, examined PW-1 the complainant of the case on 26.02.201 1 after delay of almost two years and thereafter examined PW-2 on 27.09.2014, wherein further cross of the witness reserved.
Subsequently , learned counsel for the accused filed application under section 249-A, Cr .P.C. for their acquittal.
Further , the careful perusal of the provisions of law reveals that an accused person cannot be prosecuted and punished simultaneously under sections 406 and 420, P. P.C. for the reasons that in case of criminal breach of trust/criminal misappropriation, the aggrie ved person voluntarily delivers the accused, whereas in case of cheating, he is deceitfully induced by the accused to part with the property . The aforesaid cannot reconcile. In case of criminal breach of trust, the accused is supposed to become dishonest from the very beginning, and in case of the entrustment of property to him. It, therefore, become abundantly clear that commencement, location and distinction of mens rea for offence of cheating punishable under section 420 and criminal misappropriation punishable under section 406, P .P.C. are entirely different.
It is essential to mention here that trial of accused persons under sections 406 and 420, P. P. C. would not only bad in law but conviction under both sections would also be illegal and unwarranted. There is nothing more that suspicion against the accused persons and suspicion could not take the place of proof.
In the light of above facts and circumstanc e and taking into account the judgments passed by the superior Courts, I am on the opinion that there appears no probability of the accused being convicted . Resultantly , they are acquitted under section 249-A, Cr.P.C. The accused are present on bail, their bail bonds stand cancelled and sureties discharged."
14. The fact of the matter is that primarily for delay in trial, the learned trial court resorted to exercise jurisdiction vested in under section 249-A, Cr.P.C. The record does not reflect any serious effort for procuring the attendance of prosecution witnesses. As observed hereinbefore the delay in trial is not a ground, unless a sheer abuse of process of law is established on record, to acquit an accused under section 249-A, Cr.P.C. Nevertheless, it looks expedient to ordain that trial court is under legal obligation to procure attendance of the prosecution witnesses as provided under the procedural law by issuing summons, warrants and proclamation under section 87 of the Code, framing of charge connotes that a prima facie case is made out and in such eventuality the accused cannot be acquitted by exercise of power under section 249-A, Cr.P.C. Reliance is placed on 1986 MLD 1048 . Relevant Head Note is reproduced as under:- "(b) Criminal Procedure Code (V of 1898) ....Ss. 249-A/561-A.... Penal Code (XL V of 1860), Ss. 406/408/. 420... Quashing of proceedings...Application moved on legal ground... Charge framed.... Prima facie case made out... Proceedings, held could not be quashed in circumstances"
15. For early disposal of criminal trial, the guide lines issued by the apex Court in case law PLD 2010 SC 585 has to be adhered to in letter and spirit and unless rigorous procedure is fully adopted by the trial court, exercise of jurisdiction under sections 249-A and 265-K, Cr .P.C. for disposal of case cannot be allowed or approved.
16. Other ground which prevailed the mind of the trial court was that in view of the conflicting connotations of sections 420/406, P.P.C the accused persons could not be convicted for two offences. I wonder to find out that in such situation the court of Magistrate is not expected to act so mechanically resort to enabling provisions of section 249-A, Cr.P.C., to acquit the accused persons. Simpliciter , the provisions of sections 249-A and 265-K, Cr.P.C. should not be pressed into action for decision or fate of a criminal case. The impu gned order mainly denotes that acquittal was ordered on the ground that sections 420 and 406, P.P.C. has different ingredients and as such the accused could not be convicted for both offences at the same time Such reason or ground amounts to predict fate of a criminal case. Even otherwise, it is duty of trial court to advert to and examine the contents of FIR, material and evidence, submitted with charge sheet, while framing charge and can omit any of the section for which accused cannot be tried or there is no evidence to proceed with trial for such allegation but cannot acquit any accused in the middle of trial on the ground that convict ion on both accounts would be illegal. It is duty of the court to sift grain from chaff and after conclusion of trial to see what offence, if any, has been proved against the accused. Mere mentioning or application of a wrong section in FIR or Charge Sheet was no ground to acquit accused under section 249-A, Cr .P.C.
17. To deal with the last ground of acquittal by the learned trial court while exercising power under section 249-A, Cr.P.C, the guidance can be sought from a case law 2000 PCr .LJ 752 , which depicts as under- "Criminal Procedure Code (V of 1898)... ............Ss.. 249-A & 417(2-A)... Copyright Act (XX of 1992) Ss. 66, 66-B, 66-C, 67, 70-A & 74...Appeal against acquittal........ Acquittal of accused before framing of charge... Trial Court acquitted the accused on the ground that the witnesses of recovery were interested witnesses.... Validity ...Where the prosecution was not given opportunity to prove the allegations levelled in the FIR, it could not be said that there was no probability of conviction of the accused... Such recovery witness could not be said to be interested persons without they being examined by the Trial Court and in the absence of any evidence to that effect...T rial Court had no material/evidence to justify the order of acquittal and the same had resulted in miscarriage of justice... Such order of acquittal was of no legal effect and was set aside in circumstances".
18. Framing of charge denotes appraisal of material and application of mind and in such eventuality it is the vested right of the complainant to produce entire evidence to prove charge/case against accused, unless it floats on record that charge is groundless.
19. In the light of above facts and circumstances of the case, I have reached the conclusion that impugned Order passed by learned Trial Court is perverse, arbitrary , not sustainable in the eyes of law and is suffering from factual and legal infirmity . Resultantly , the Criminal Acquittal Appeal is allowed and impugned Order dated 03.12.2014 passed by learned Judicial Magistrate V, Karachi, East, is set aside. The case is remanded to learned Trial Court with direction to record the evidence of the parties and conclude the same within period of two months. The Respondents are directed to furnish suret y in the sum of Rs.50, 000/- each with P.R Bond in the like amount to the satisfaction of learned Trial Court. In case of failure to deposit surety , the learned Trial Court has to take appropriate action in accordance with law. The prosecution is directed to ensure presence of all P.Ws before learned Trial Court during the course of trial. The above observation is tentative in nature which shall not prejudice the case of either party at the trial.