The appellant is a Transporter. On his application a case was registered vide F.I.R. No. 54 of 1994 dated 2-6-1994 under sections 406/ 408/4,68/471/420, P.P.C., Police Station Nowshera, District Khushab against respondents Nos. l and 2, The prosecution story in the said criminal case was that during the period. From March, 1989 to June, 1992 respondent Muhammad Iqbal acted as a Supervisor of the Transport Company which was owned by the appellant-complainant and former's maternal uncle, respondent No.2 Muhammad Ilyas acted as a part-time Cashier. It was alleged in the F.I.R. That in the afore-referred period, the respondents prepared bogus documents, forged record of the company and misappropriated an amount of 29 lacs. Pursuant to the mutual agreement the matter was referred to arbitration. The Arbitrators pronounced the award on 13-9- 1993. The said award was challenged by respondent Muhammad Ilyas. Since the matter involved criminal liability as well, the appellant got the instant case registered. The respondents sought the quashment of the case through Writ Petition No. 10792 of 1994 which was dismissed on 7-11-1994 and I.C.A. No.566 of 1994 against the said order was also dismissed on 13-11-1994. After the submission of challan, respondents-accused sought quashment of the proceedings through Criminal Miscellaneous No. 206-Q of 1996 which too met the same fate vide order dated 21-7-1996 passed by this Court. Notwithstanding the afore-referred orders of this Court the learned trial Court vide the impugned order dated 14-9-1996 discharged the respondents on the grounds that the dispute was civil in nature; that the alleged criminal transactions spread over more than one year and that the joint trial was bad in law.
2. Learned counsel for the appellant has challenged the impugned order by submitting that the impugned order is an order of acquittal which the learned trial Court could not have passed having once dismissed respondents application under section 249-A, Cr.P.C. He added that no discharge order could be passed after submission of challan particularly in view of the fact that the quashment petition had already been dismissed by the High Court.
3. Learned counsel for the respondents, on the other hand, has defended the impugned order by submitting that it was a case of civil nature and had been brought to criminal domain for mala fide reasons, that the order has been passed on an objection raised by the respondents at the time of framing of charge and that since the alleged offences have took place in a period of four years, therefore, the joint trial is not contemplated in law. In support of the submissions he placed reliance on a judgment reported in Malik Murid Sadiq v. The State (1968 P.Cr.L.J 657).
4. Syed Zahid Hussain Bokhari, Advocate who was asked to assist the Court as amicus curiae did not support the impugned order and submitted that there is no provision in law which empowers the learned trial Court to discharge an accused after submission of challan. He submitted that the record indicates that the learned trial Court had already taken cognizance and having done so it could not have discharged the respondents-accused. He added that if the learned trial Court was of the view that the joint trial of offences spread over more than one year was not possible then he should have taken up three transactions in one trial and could have framed separate charges accordingly. In support of the submissions made he relied on a judgment of the Hon'ble Supreme Court reported in Muhammad Aslam and another v. Additional Secretary to Government of N.- W.F.P. (PLD 1987 Supreme Court 103).
5. Heard.
6. The grounds which found favour with the learned trial Court to pass the impugned order had already been attended to and repelled by this Court while dismissing Criminal Miscellaneous No.206-Q of 1996. The operative reads as under:-- "The learned counsel for the petitioners has not been able to convince me that the view taken by the learned trial Court while deciding the petition under section 249-A, Cr.P.C. Was not sustainable in the eye of law. The prosecution has already collected enough evidence against the petitioners, which has been cited in the report submitted to the Court under section 173, Cr.P.C. The series of transactions though starting from 1989 and ending in 1993 were also taken into account during arbitration by the Arbitrator, who had also given the finding regarding outstanding amount and the parties were directed to settle the matter. The applicability of the provisions contained in section 222, Cr.P.C. Read with section 234, Cr.P.C. Cannot be discussed at this stage without prejudice to the merits of the case. The charge is yet to be framed in the learned trial Court and it shall be open for the petitioners to taken an objection if the charge is not correctly framed or is violative of any provisions of law by referring to the evidence, which has already been collected and placed on record. As such no conclusive finding can be given at its stage, when the charge is yet to be framed but it is enough to say that it is a case for judicial test."
7. Notwithstanding the afore-referred order passed by this Court, the learned trial Court chose to discharge the accused-respondents. Admittedly, the charge had not been framed by the learned trial Court so far. The learned trial Court fell in error in acquitting the respondents-accused merely on the ground that since transactions were relatable to more than one place and the period of alleged offences were spread over more than one year, therefore, the offences could not be jointly tried. The trial Court lost sight of the fact that it was a case of criminal breach of trust in which the head office of the transport company and the place of residence of the respondents-accused fell within the jurisdiction where the case was registered. It also did not appreciate the import of enabling provision of sections 222 and 234 of the Criminal Procedure Code under which the trial Court could rectify the procedural error. In Nadir Shah v. State (1980 SCM R 402), precisely this question came up for consideration before the Hon'ble Supreme Court wherein at page 408 it was held as under:-- "On account of nature of the offence in cases of criminal breach of trust, subsection (2) of section 222 made an enabling provision that instead of giving all the details of each item of misappropriation, it would be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and this would be deemed to be a charge of one offence within the meaning of section 234. The only limitation was that the different items so brought under one charge and thus, constituted into one offence shall relate to a period of only one year. Section 234 which cad be applied 'to other offences also contains similar provision namely, that if a person is accused of more offences than one of the same kind committed within a period of one year, he can be charged with and tried at one trial for any number of them not exceeding three. Thus, while there is a limitation of maximum three offences/Items which can be combined under section 234 there is no such limitation with regard to offence of criminal breach of trust provided for in subsection (2) of section 222. Therefore, subject to the other conditions. If a person is charged with having committed several offences of criminal breach of trust, within a period of one year, they can all be combined into one charge. But the provisions being only an enabling one, it will not be necessary to do so in all the cases, because the general rule in this behalf is, as provided in section 233, Cr.P.C. That for every distinct offence there shall be separate charge and the same shall be tried separately except, of course, when the Code itself permits otherwise. The provision is based on a salutary principle that when each charge is tried separately, there is muchless apprehension of prejudice to the accused as compared to a trial wherein several offences are combined together.
In the present case it appears that the provisions- contained in section 233, Cr.P.C. Were followed and the enabling provisions contained in section 222(2), Cr.P.C. And/or section 234, Cr.P.C. Were not made use of. We agree with the learned counsel for the State that in the circumstances of the case, if the learned trial Court thought, of course, before the pronouncement of the judgment as provided in section 227, Cr.P.C., that combination of the charges would help the accused in facilitating his defence, he could have altered the charges and proceeded accordingly, as provided in section 228, Cr.P.C. And the sections next following. He could not have made the so- called defect as the ground for acquitting the accused. "
8. The impugned order cannot be sustained on yet another ground i.e. After the submission of final report under section 173, Cr.P.C. And having taken cognizance by the learned trial Court, the accused-respondents could not have been discharged and the only provision which could be made use of is provided in section 249-A, Cr.P.C. When there is no probability of B conviction. The latter provision had already been exercised by the learned trial Court vide which the respondents- accused's application stood dismissed and even their quashment petition met the same fate by an order of this Court referred to above. The order of discharging the accused-respondents after having issued process and having taken cognizance of the case is against the law declared by the Court in Wazir v. The State (PLD 1962 (W.P.) Lahore 405) and Muhammad Aslam and another v.
Additional Secretary toy.' Government of N.-W.F.P. (PLD 1987 Supreme Court 103).
9. For what has been discussed above the impugned order dated 14-9-1996 passed by the learned Judicial Magistrate Khushab whereby he discharged the accused-respondents cannot be sustained in law. The appeal is allowed and the impugned order is set aside. The case is remanded to the learned trial Court for trial in the light of the observations made in para. 7 above.