1. ' AJMAL MIAN, J.--We intend to dispose of the above four criminal acquittal appeals by this common judgment as the order in all the above appeals is the carbon copy of the original judgment/order. It may be advantageous to give the details of the criminal acquittal appeal number, case number, names of accused and the relevant sections of the P.P.C. Under which they are charged.-- Criminal Acquittal AppealNo.Case No.Names of the accusedRelevant sections of the P.P.C. charged with.
2. 113 of 1982795 of 1981Muhammad Ibrahim, Nisar Ahmed, Masood Akhtar, Rizvi.477-A, 308/34 114 of 1982794 of 1981Nisar Ahmed, Masood Akhtar Rizvi. 408, 447-A/34 115 of 1982796 of 1981Nisar Ahmed, Masood Akhtar Rizvi. 408, 471, 477-A 116 of 1982793 of 1981Nisar Ahmad, Masood Akhtar Rizvi, Muhammad Wasi, Anwar Saigal.408/34,471/34, 477/34
2. The brief facts leading to the filing of the above cases are that on 27-8-1968, Mr. Shamsuddin Siddiqui, Controller Advances of the then Australasia Bank Limited (now known as Messrs Allied Bank after nationalisation) lodged F.I.R. Alleging therein that after necessary investigation it was discovered that an account in the name of one Ali Hasan was opened on 8-9-1967 at the P.E.C.H.S. Nursery Branch, Karachi upon introduction by the then cashier i,e,, Nisar Ahmed accused with an initial deposit of Rs,20 and that in the ledger there was no transaction recorded from the date of the opening of the above account but in spite of this three cheque books containing cheque numbers mentioned therein were issued on 15-6-1968, 19-7-1968 and 12-8-1968. It was also averred that another cheque book bearing No, 0233081 to 0233090 appeared to have been issued to one person but was in the handwriting of the person who committed fraud and embezzlement upon the bank. It was also averred that the various cheque mentioned in the statement attached were drawn on the accounts mentioned against each cheques and paid out by the cashier Nisar Ahmed. It was also stated that the account number on each cheque was not the account number against which several cheque books had been issued but in spite of that the cheques were paid and the amount was embezzled. It was further averred that the cheques were so manipulated that they were below Rs,3,000 which did not require the approval of the Manager and were to be passed by the Accountant Mr. Altaf Ahmad Wasti and/or the second signatory. It was also alleged that the various cheques referred to in the statement amounted to Rs,55,500. Upon the receipt of the above report, the Ferozabad Police Station registered a case against the respondents under section 408/471/468/477-A/34, P.P.C. And submitted charge-sheet on 14-9-1968. It seems that till the reframing of the charges on 14-6-1980 only one witness Israr Hussain Khan was examined. It further seems that after the amendment in the C.P.C. By Law Reforms Ordinance the charges were reframed. It may be advantageous to reproduce the charges in the above four cases which are given in seriatim: ' Criminal Acquittal Appeal. No 113 of 1982 ' CHARGE WITH THREE HEADS (Sections 221, 222, 223 of the Code of Criminal Procedure) Charge in the case of-- (1.) Muhammad Ibrahim son of Fazal Karim
(2) Nisar Ahmad son of Jan Muhammad
(3) Masood Akhtar Rizvi son of Safdar All ' I, Syed Ali Anwar Shah, Magistrate, Ferozabad and Bahadurabad, Court No, V, Karachi (East), hereby charge you as follows:- ' Firstly: That on or about the 16th day of October, 1967 you being employed as Clerk in Australasia Bank Limited, P.E.C.H.S. Branch, Karachi received Rs,200 from Muhammad Siddiq, account holder and on its counterfoil accused Muhammad Ibrahim signed as cashier and the accused Masood Akhtar as Officer but this account was not shown in the Books of the Bank which bears the signature of accused Nisar Ahmad as Cashier and thus misappropriated this amount for 15 days, and thereby committed an offence punishable under section. 408/34 of the Penal Code, and within my cognizance.
3. ' Secondly: That you, on or about the 16th day of October, 1967 acting as cashier and empowered to sign the counterfoil, signed the counterfoils, of the cash deposited by Muhammad Siddiq but did not make any entry of its receipt in the books of the Bank on that day with the intent to defraud, and thereby committed an offence punishable under section. 477-A/39, P.P.C. And within my cognizance. And I hereby direct that you be tried by the said Court (or me) on the said charge.
4. ' Sd/ ' 14-6-1984 ' Magistrate 1st Class.
5. Criminal Acquittal Appeal No,114 of 1982 ' Charge in case State v. Nisar son of Jan Muhammad and Masood Akhtar son of Safdar All under sections 408/477-A/34, P.P.C. In Crime No, 453/68 of P.S. Ferozabad, C.I.A., Karachi.
6. ' Q. No, 1.--It is alleged that on different dates while accused Nisar Ahmad was working as cashier in Australasia Bank Limited P.E.C.H.S. Branch you tempered with the documents of the said Bank and made forged entries and with the help of the other co-accused Masood Akhtar misappropriated cash Rs,11,233 committed offence under sections 408, 477-A/34, P.P.C. What have you to saV?
7. ' Ans. It is incorrect.
8. ' Q. No, 2.--Do you want to proceed with the case? Ans. Yes Sir.
9. ' Sd/ Illegible A.C.M. XIV.
10. Criminal Acquittal Appeal No,115 of 1982 ' CHARGE WITH THREE HEADS Charge in the case of-- ' State ' versus
(1) Nisar Ahmad son of Jan Muhammad (2) Masood Akhtar son of Safdar Ali S. All Anwar Shah, Magistrate 1st Class, Ferozabad, Bahadurabad P.S. ' Firstly, that you, on or about the 13th day of November, 1967 to 10-8-1968 being employed as Clerk in the Australasia Bank Limited, P.E.C.H.S. Branch, Karachi committed criminal breach of trust by mis-appropriating an amount of Rs,15,826.43 by receiving cash deposit from different parties and signed their counterfoils, only, and thereby committed an offence punishable under section 408/34 of the Pakistan Penal Code and within my cognizance.
11. ' Secondly, that you, on or about the 13th day of November, 1967 to 10-8-1968 did not make entries in the books of the bank regarding the cash amount which the parties had deposited in the bank, dishonestly, and thereby committed an offence punishable under section 471/34, P.P.C. Of the Pakistan Penal Code and within my cognizance.
12. ' Thirdly, that you, on or about the 13th day of November, 1967 to 10-8-1968 acting as cashier and empowered to sign the counterfoils signed the counterfoils deposited by the parties in the bank but did not make entries in the books of the bank regarding the amount received by you with intent to defraud, and thereby committed an offence punishable under section' 977-A/34, Pakistan Penal Code and within my cognizance.
13. ' And I hereby direct that you be tried by the said Court (or me) on the said charges.
14. ' Magistrate's Court ' District Karachi ' Sd- ellegible ' Magistrate 1st Class ' 14-6-1984 ' The charge is read and explained to the accused who is questioned as follows: ' Q. Do you plead guilty or have you any defence to make? A. We do not plead guilty to the charge.
15. Criminal Acquittal Appeal No, 116 of 1982.
16. ' CHARGE WITH THREE HEADS (Sections 221, 222, 223 of the Code of Criminal Procedure) Charge in the case of--
(1) Nisar Ahmed son of Jan Muhammad
(2) Masood Akhtar son of Safdar All
(3) Muhammad Wasi son of Tahir Hussain
(4) Anwar Saigal son of Muhammad Gulzar Saigal.
17. ' I (Name and office of Magistrate) Syed Anwar Ali Shah, Magistrate 1st Class, Ferozabad, Bahadurabad P.S. Hereby charge you (name of accused persons) as above follows:- ' Firstly: That you, on or about the 8th day of September, 1967 being employed as Clerk in the Australasia Bank Limited P.E.C.H.S. Branch committed criminal breach of trust of opening Account No, 1857 in the suspicious name of All Hussain and issued six cheque books without mentioning account number on them, and thereby committed offence punishable under section 408/34 of the Pakistan Penal Code and within my cognizance.
18. ' Secondly: That you, on or about the 9th day of September, 1967 to 12-8-1968 utilized forged cheques under forged signatures and made payment of Rs,97,700 by using forged cheques and thereby committed an offence punishable under section) 471/34 of the Pakistan Penal Code and within my cognizance.
19. ' Thirdly: That you, on or about the 9th day of September, 1967 to 12-8-1968 acting in the capacity of a clerk/officer with intent to defraud made false entries in the books of the bank of making payment on forged cheques amounting to Rs,97,700 and thereby committed an offence punishable under section 477-A/34, Pakistan Penal Code, and within my cognizance.
20. ' And I hereby direct that you be tried by the said Court (or me) on the said charge.
21. ' Magistrate's Court District Karachi 14-6-1984 ' The charge is read and explained to the accused who is questioned as follows: ' Q. Do you plead guilty or have you any defence to make? A. We do not plead guilty to the charge.
3. It may be observed that in Case No, 795 of 1981 (Criminal Acquittal Appeal No, 113 of 1982) 29 witnesses were cited; in Case No, 794 of 1981 (Criminal Acquittal Appeal No, 114 of 1982) 14 witnesses were cited; in Case No, 796 of 1981 (Criminal Acquittal Appeal No, 115 of 1982) 9 witnesses were cited and in Case No, 793 of 1981 (Criminal Acquittal Appeal No, 116 of 1982) 23 witnesses were cited in the challan. It seems that only 13 witnesses were examined in case No, 793 of 1981 corresponding to Criminal Acquittal Appeal No, 116 of 1982 namely, Syed Altaf Ahmad Wasti, Exh. Nil, Muhammad Ayub Exh. 3, Shahid Anwar Exh.4, Turab All Exh.5, Khadim Hussain Siddiqui Exh.6, Syed Afzal Hussain Exh.7, Wall Khan Exh.8, Mushtary Khan Exh.9, Israr Hussain Khan Exh.10, Ehsanullah Exh.11, Khawaja Nazeer Ahmad Exh.12, Taj Ahmad Exh.13 and Farooq Jan Exh. Nil. It may also be pertinent to point out that in between the recording of the above evidence the respondents filed four quashment applications in 1976 namely, Criminal Miscellaneous Applications Nos. 1226 of 1976, 1227 of 1976, 1228 of 1976 and 1229 of 1976 which were dismissed by a learned single Judge of this Court by an order, dated 18-6-1977 with the observations that the trial Court should dispose of the cases as early as possible. It may also be stated that the R.&P. Was received by the trial Court on 26-6-1977 but the cases were not finalised even in 1978 and, therefore, the respondents filed four fresh quashment applications in the High Court namely, Criminal Miscellaneous Applications Nos. 425 of 1978 to 428 of 1978, which were dismissed by a learned Single Judge of this Court by his order, dated 25-3-1979.
22. The respondents filed petition for leave to appeal in the honourable Supreme Court of Pakistan, namely K-46 of 1979, which was dismissed by the order, dated 26-5-1970 but with the direction that the cases shall be finalised within three months, failing which it would be open to the petitioners to move High Court afresh for quashment of the proceedings provided they were not themselves at fault for the delay. It may be advantageous to reproduce the operative portion of the above Supreme Court order:- "We find that the High Court has rejected petitioner's prayer for quashment for extremely cogent reasons and there is no ground, whatsoever, for interference by this Court. In view of the long delay in the disposal of the cases we direct that the cases against the petitioners shall be completed within 3 months, failing which it will be open to them to move the High Court afresh, for quashment of the proceedings provided they are not themselves at fault for the delay.
23. ' With these observations, the petition is otherwise, dismissed."
24. ' It may also be pertinent to observe that from November, 1970 onwards the respondents filed several applications for the production of the record by the bank to prove their defence but the same were contested. Eventually the bank was ordered to produce certain record but P.W. Farooq Jan, Manager Allied Bank, Nursery Branch appeared on 20-8-1980 in response to the trial Court's letter, dated 22-6-1980 bearing No, 632/80, as a witness before the trial Court and stated that they had searched for the document mentioned in the list but could not find the complete record and found a little bit record of which he produced list as Exh.C.W.1. He further deposed that the documents mentioned in the list Exh.C.W.2 were not traceable and nor there was any likelihood of tracing them out in future. It further seems that respondent's counsel moved application under section 249-A, Cr.P.C. Which was allowed by the learned Additional City Magistrate Court No, VI East, Karachi by his order, dated 22-11-1981. The State being aggrieved by the above order filed the above appeals under section 417, Cr.P.C.
4. Mr. Ghulam Ali Agha learned counsel for the appellant in support of the above appeals has submitted as follows:
(i) That since the prosecution had not completed its evidence and had not stated that they were not in a position to produce further evidence, the learned trial Court was not justified in pressing into service section 249-A, Cr.P.C.
(ii) That since the evidence was recorded in Case No, 793 of 1981 (Criminal Acquittal Appeal No, 116 of 1982) and since the recording of the evidence in the remaining three cases had not commenced, the learned trial Court should not have passed identical judgment in all the four cases.
25. ' On the other hand Messrs A.K. Lakhan, Asad All Bilgrami, Muhammad Shafi Muhammadi and Shafiq Qureshi, learned counsel for the respondents, have urged as follows:
(i) That the trial had commenced in 1968 and that in spite of the expiry of nearly 14 years and in spite of the directives of the High Court and the Supreme Court the prosecution failed to complete the cases and as admittedly some witnesses had died and some documentary evidence was not available, the learned trial Court was justified in passing the judgment under appeals.
(ii) That the view taken by the trial Court is in consonance with the cannon of justice and that this Court will not interfere in criminal acquittal appeal unless it finds that the view found favour with the learned trail Court cannot be supported in any view of the matter.
5. This is an admitted position that in spite of the expiry of 14 years the trial had not concluded, so much so in Case No, 793 of 1981 (Criminal Acquittal Appeal No, 116 of 1982) the evidence was not completed and the recording of the evidence in the other three cases had not commenced, in spite of the direction of the honourable Supreme Court reproduced hereinabove. It may be pertinent to observe that during the period commencing from 26-5-1980 to 22-11-1981 i,e, after directive of the Supreme Court, the cases had come up for hearing 146 times. The prosecution had obtained adjournment 35 times causing delay of 90 days, whereas the defence had obtained adjournment for 18 times resulting in delay of about 81 days. Even if we would exclude the above delays caused by the prosecution and the defence, there was still about 1 year time to complete the trial. However, it was urged by Mr. Ghulam All Agha, learned counsel for the appellant that simpliciter delay cannot be a ground even for quashment of the proceedings under section 561-A.
26. Reliance was placed by him on the case of M.S. Khawaja v. The State PLD 1965 SC 287 in which the honourable Supreme Court was pleased to observe as follow, as to the question of delay: "The impression is gained from these quotations that in the learned Single Judge's view time was of the essence for the competency of a criminal prosecution, and to that extent, we must observe that this view cannot be accepted as of universal application. Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
27. ' On the other hand Mr. Bilgrami appearing for respondent Ibrahim has referred to the following cases:
(i) The State v. Shakoor Hashim Patel PLD 1960 (W.P.) Kar. 926, in which a learned Single Judge of the erstwhile High Court of West Pakistan allowed the quashment proceedings on the ground that evidence on record had not made out prima facie case against the accused and that the case was pending for six years without doing anything substantial.
(ii) Amanullah Khan v. The State PLD 1965 (W.P.) Kar.
310. In the above case a learned single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, quashed the proceedings under section 561-A, Cr.P.C. As there was inordinate delay in investigation and prosecution of the criminal case.
(iii) C.D. Amin v. The State 1970 P Cr. L J 3, in which Muhammad Haleem, J (as he then was now the honourable Chief Justice of Pakistan) analysed the question as to when the delay in a criminal case may constitute abuse of process of Court, it was observed that the delay cannot by itself constitute a ground for the quashment of the cases but in order to make out an abuse of the process of the Court it must either be accompanied by some prejudice caused to the petitioner in the matter of his defence such as disappearance of evidence in his favour or the death of any witness and such other circumstances of a like nature.
(iv) State v. Pario 1972 P Cr. L J 915. In the above case the accused was in custody who was charged under section: 395/397, P.P.C. But the trial did not conclude even after the expiry of 71 years, it was observed that if the case against the respondent would have been concluded within a reasonable time, the respondent would have been awarded normal sentence of 7 years' R.I. But the prosecution by their delaying tactics indirectly punished the respondent for the aforesaid offences by keeping him in confinement for 71/2 years.
(v) Wisal Ahmad v. The State 1968 P Cr. L J 1412, in which the proceedings were quashed under section 561-A, Cr.P.C. On the ground that in spite of the direction issued on 8-9-1966 for bifurcation of the case by the trial Court, separate challans were not submitted in spite of expiry of some time.
(vi) Muhammad Anwar Khan v. The State 1976 P Cr. L J 159, in which the proceedings were quashed on the ground that the case against the petitioner was pending for the last 12 years and in Court for last 7 years and only four prosecution witnesses were examined.
(vii) Mansab Ali v. The State 1977 P Cr. L J 461. In the above case a learned single Judge of the Lahore High Court quashed the proceedings under section 561-A as despite 16 adjournments the prosecution failed to produce the evidence.
(viii) Zaildar and 3 others v. The State 1977 P Cr. L J 710, in which the case was remanded by the lower appellant Court for retrial for the cross-examination of the Investigating Officer with the direction to dispose of the case within a period specified therein but in spite of the above direction the case was not completed. The petitioner was facing trial for more than five years, the quashment proceedings were allowed.
(ix) S.M. Siddiq v. The State 1975 P Cr. L J 1057. In the above case a learned single Judge of the Lahore High Court allowed the quashment under section 561-A as the prosecution had not examined any witness within five years nor there was any chance of the recovery of the alleged embezzled amount. It was held that the delay in the trial of criminal proceedings causes great mental agony and this is a sort of punishment without trial and conviction. It may be pointed out that the above case also related to the embezzlement of certain amounts of Habib Bank Limited.
6. We may observe that strictly speaking the above rulings are not directly applicable as we have not heard quashment proceedings under section 561-A, Cr.P.C. But we have heard criminal acquittal appeals under section 417, Cr.P.C. However, it may be pertinent to observe that the Courts have quashed the proceedings even on the ground of the delay particularly when the delay has caused some prejudice to the accused in the form of destruction or disappearance of the evidence. In the instant cases, the point in issue is, whether the judgment of the trial Court under section 299-A, Cr.P.C. Is in accordance with law. In this regard, it may be pertinent to quote hereinbelow the above, section, which read as follows: ' Section 249-A.--Power of Magistrate to acquit accused at any stage.--Nothing in this chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
28. It may be noticed that under the above-quoted section a Magistrate at any stage of the trial can record acquittal order if he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. In the present case, it cannot be said that the charges against the respondents were groundless as we have gone through the evidence on record which comprises the above 13 witnesses and the documentary evidence in the forms of cheques, etc. And there seems to be some evidence against some of the respondents prima facie to indicate that there was some truth in the charges. However, we had called upon Mr. Ghulam An Agha learned counsel for the State to point out whether on the evidence on record any charge has been proved and whether any of the accused can be convicted, he is unable to manifest on the basis of the evidence on record that any of the respodents can be convicted. It is admitted position that some of the witnesses had expired and some are not available. It is also admitted position that the bank through its witness P.W. Farooq Jan has stated on oath that the documents mentioned in Exh. C.W.2 are no longer available. It is also admitted position that in three of the cases not a single witness has been examined though the cases remained pending before the trial Court for about 14 years.
29. In this view of the matter, the learned trial Court could record acquittal order particularly in view of the fact that it was directed twice by the High Court in the aforesaid quashment proceedings to finalise the case as early as possible and by the honourable Supreme Court by its order, dated 26- 5-1980 passed in petition for special leave to appeal No, K-46 of 1979 to complete the cases within three months. Admittedly in spite of the expiry of more than 14 years from the passing of the above order by the Hon'ble Supreme Court, the cases were not completed. We may also observe that more than 16 years have expired from the time of the initiation of the above proceedings and it will not be just and proper to remand the cases after the expiry of the above period. It is a well-settled principle of law that a criminal acquittal appeal cannot be allowed if the judgment of the trial Court can be supported by any view of the matter which is possible. In this regard reference may be made to the cases of State v. Muhammad Rafiq PLD 1983 Quetta 128 and State v. Lois Kowach 1981 P Cr. L J 102, relied upon by Mr. Lakhan, Advocate.
30. ' In the first case a Division Bench of Baluchistan High Court held that it is an established principle of law that in an appeal from the acquittal of the accused starts with the double presumption in his favour, firstly, that there is a rule, it is for prosecution to make out a case until they do so beyond reasonable doubt the accused must be presumed to be innocent, and secondly, the accused having succeeded in securing acquittal from the Court the superior Court will not interfere until, the State shows conclusively that the interference is irresistible.
31. ' Whereas in the second case a Division Bench of this Court held that while appraising evidence in an appeal against acquittal, the High Court will not normally interfere with the conclusion reached by the trial Court on appreciation of evidence unless such appreciation of evidence is perverse, foolish or based upon extraneous consideration.
7. We are, therefore, of the view that it is not a fit case in which this Court should interfere in acquittal appeals as it will not serve the ends of justice. However, we may observe that dismissal of the above appeals will be without prejudice to the bank's right to take departmental action against the respondents, if it considers it necessary and proper. With the above observations the above appeals are dismissed.