1. ' The applicant was employee of Pakistan Progressive Cement Industries Ltd., Karachi (hereinafter referred to as the Industries). In the year 1972 he was Accountant and was responsible for maintaining salary-sheets of the staff. It transpired during audit inspection of the account books maintained by the applicant that there was defalcation of huge amount. Such report was submitted by Cost Accountant, Sardar Ahmed Qureshi and Auditor Shaikh Ibrahim. On their report Mr. Tasleem Ahmed Khan, Law/Labour Officer lodged report against the applicant. Mr. Agha Sharif S.H.O. Of Police Station Drigh Road recorded F.I.R. For offences under section 408/477, P.P.C. Against the accused/applicant and after investigating the case, sent up the accused for trial before a Ist Class Magistrate of Karachi on 28-10-1972. The case remained pending before the learned Magistrate upto the year 1981. During this period the case was transferred from one Magistrate to another. However, 6 witnesses were examined namely, Tasleem Ahmed Khan, Sardar Ahmed Qureshi, Ibrahim Shaikh, Abid Kareem Mashir Hanif and Shafiqullah. Still some material witnesses namely, Muhammad Siddique and the Investigating Officer remained to be examined.
2. ' In the year 1981 the applicant filed an application under section 249-A, Cr.P.C. In the Court of trial Magistrate i,e, 1st Class Magistrate (East) Karachi, praying for acquittal on the ground that there was no likelihood of his conviction on the basis of the evidence so far recorded. The learned Magistrate dismissed the application saying that the applicant was a public servant and that the case was triable by the Special Judge. He further observed that a reference is being made to the High Court for transfer of the case to Special Judge Anti-Corruption. This order was passed by the learned Magistrate on 28-6-1981.
3. Thereafter, the applicant moved this application under section 561-A, Cr.P.C. For quashment of the proceedings. It may be stated that the view of the Magistrate that the case was triable by a Special Judge Anti-Corruption, is misconceived. The alleged offence is said to have been committed in the year 1972, when employees of organization controlled or administered by the Government were not declared to be public servant. For the first time such employees were included in the A definition of 'public servant' by Prevention of Corruption Laws (Amendment) Ordinance 1977, which came into force on 18th January, 1977. This Ordinance enlarged the definition of 'public servant' so as to include an employee of any corporation or other body or organization set up, controlled or administered by the Federal Government. Thus, at the relevant time the applicant was not a Government servant and as such the offences with which he has been charged shall not be deemed to be Scheduled offences.
4. ' The main ground urged in support of this application by Mr. B.M. Bungash is that the trial of the case took about nine years during which period only 6 witnesses were examined, from whose evidence the charge of offence under section 408 or 477, P.P.C. Has not been made out. His plea is that nine years delay by itself is a ground for quashment of the proceedings against the applicant.
5. In support of this plea he has relied on the case of Fazal Karim v. The State PLD 1957 Lah.
837. In this case the trial had protracted for about 5 years without making any substantial progress.
6. The learned single Judge who decided the above case concluded as under as to the merits of the case:- "The perusal of the different orders which have been passed by the learned Magistrate in this case and keeping the case pending for five long years without doing any thing substantial certainly go to show that there has been an excessive abuse of process of law and denial of justice, which can, under no circumstances, be condoned. I, consequently though with great reluctance, accept the three petitions, and order that the proceedings started on the First Information Report recorded on the 8th of June, 1952, be quashed."
7. ' The above case was also followed in Muhammad Hussain v. The State PLD 1959 Lah. 322 in which the learned Judge of the Lahore High Court made following observations in respect of inordinate delay in the trial of criminal cases:- "If the prosecution does not take care to see that a case against an accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its progress, the fault must lie at its door, whether for non-production of sanction, the witnesses, the co-accused from jail, or by the frequent transfers of case from Court to Court, by change of law or by the conduct of the prosecutor. The intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay. It is a mockery of law to allow criminal cases to proceed for four or five years without any progress. It is revolting to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided. If the prosecution fails persistently without reasonable cause to produce its witness, or seeks adjournments unjustifiably, it is the duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied, for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise. A fair and a speedy trial is the essence and essential of judicial administration in a civilised country. Protracted proceedings are a mockery of the law and must be deemed to be an abuse of process of Court. In such cases the High Court has ample powers to set aside the proceedings in exercise of powers under section 561-A of the Criminal Procedure Code."
8. ' In the present case although 6 witnesses have been examined, but the main evidence consists of the documents i,e, account books, Pay-Rolls and other documents regarding disbursement of salary. The Industries have not produced these documents. From perusal of the evidence of the witnesses so far recorded, the liability for defalcation or embazzlement, if any, cannot be laid squarely upon the applicant, because it has been admitted by the complainant Tasleem Ahmed himself that the pay-rolls etc. Have not been signed by the accused/applicant. Even the report of the Cost-Accountant shows that the defalcation, if any, has been made by the accounts staff. This report has been produced by Sardar Ahmed Qureshi, Cost-Accountant during his deposition and he does not say that the applicant alone is responsible for this defalcation .
9. In view of the above, evidence, it can be said that there is no likelihood of the applicant being convicted of the offences he has been charged with. Although the trial remained pending before the trial Court for nine long years, still the most important evidence has not been produced before him.
10. ' I am, therefore, in respectful agreement with the decisions of the Lahore High Court referred to above and hold that the criminal proceeding against the applicant is liable to be quashed.
11. Consequently the application is allowed and the criminal proceeding pending now before A.C.M. VII (East), Karachi against the applicant is quashed.