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Criminal Revision No. 521 of 1966, decided on 28th February 1977.

-- S. 408-Conviction, propriety of - Trial Magistrate calling upon accused petitioner to deposit diet money and process fee for summoning defence evidence and eventually closing defence case without any justifi cation and without affording petitioner opportunity to show that money misappropriated was deposited by him and complainant compounded offence with him-Two main prosecution witnesses also not examined by trial Court-Judgments of Courts below, held, suffered from material irregularity-Conviction and sentence set aside, in circumstances-Com plainant having himself applied for withdrawal of case and case being 11 years old, retrial, held, not justified.

Mahfoozul Haq Khan for Petitioner.

Muhammad Iqbal Malik for the State.

Date of hearing: 28th February 1977.

Muhammad Yaqub Beg petitioner was convicted and sentenced to six months' R. I. and a fine of Rs. 300 or in default thereof to undergo further tip months' R. I. under section 408, P. P. C. by Mr. Faisal Tehseen Memon, Magistrate First Class, Lahore, vide his judgment dated 5-1-1966. Aggrieved against his conviction and sentences, he filed an appeal before Ch. Ghulam Hussain, Additional Sessions Judge, Lahore, who vide his judgment dated 22-6-1966, dismissed his appeal and maintained his conviction and sentences.

2. Hence this revision petition which was admitted by the order of this Court-dated 30-6-19'66 to consider whether the learned trial Magistrate was justified to call upon the petitioner to deposit diet money and process fee for summoning defence evidence and if he had not whether the same had prejudiced the case of the petitioner. A report was also called for from the learned Magistrate to quote rules or any provisions of law under which he called upon the petitioner to deposit diet money and process fee. The petitioner was released on bail.

3. I have heard the learned counsel for the petitioner as well as learned counsel for the State and have perused the record of this case carefully with their assistance. The record of the case does not show that any report so called far from the trial Magistrate had ever reached this Court. While going through the judgment of the learned Additional Sessions Judge, I find that in paragraph No. 11, he has observed that Muhammad Ashraf Khan complainant had moved the Senior Superintendent of Police and the District Magistrate for withdrawal of the case but nothing was further said about this aspect of the case by the learned Additional Sessions Judge as to what was the result of that request made by the complainant. It has been revealed during the course of argument that the petitioner had paid Rs. 7,600.12, for which he was being charged as this was the amount alleged to have been misappropriated by him. It has also been submitted that the petitioner had lost his job and since 1966 after his release on bail, was living a peaceful life as a citizen of Pakistan.

4. Learned counsel for the State has frankly conceded the proposition of law to which and rightly so that the learned trial Magistrate was no justified to call upon the petitioner to deposit the diet money and the process fee for the production of the defence witnesses. It was duty incumbent upon the trial Magistrate to summon the Defence Witnesses at the State expense. This being so it stands fully established that the defence of the petitioner was closed without justification and thus he was not given a chance to show that the money for which' he was being charged was deposited by him and the complainant had compounded the offence with him. Moreover, the record of the case further shows that two main Prosecution Witnesses, namely Saghir Ahmad Siddiqui and Mr. Noor were not examined by the trial Court

5. In view of the above, I am of the considered opinion that the conviction of the petitioner cannot tie maintained and the judgments of both the Courts below suffer from material illegality. Accordingly, I accept the revision petition and set aside the conviction and sentences of the peti tioner and acquit him. Since, he is on bail he will stand discharged of his bail bonds.

6. Ordinarily I would have directed the trial Magistrate to reopen the case and give a chance to the petitioner to defend his case but keeping in view the peculiar circumstances of this case, particularly when the complainant had himself moved for the withdrawal of the case, re-trial of the petitioner, in this case, would not be justified after a lapse of eleven years.

Petition allowed.

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