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Criminal Petition for Leave to Appeal No. 59‑K of 1986, decided on 10th August, 1986.

(On appeal from the judgment of the High Court of Sind, dated 2‑6‑1986, in Criminal Miscellaneous Application No. 662 of 1983).

‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Question of law pressed before Supreme Court, not raised before Trial Court/High Court‑‑In absence of views of lower Courts, leave to appeal refused.

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss.265‑K & 403‑ Quashing of proceedings‑‑Petitioners challaned on six charges of embezzlement, acquitted in one case‑‑Application seeking quashment and acquittal in remaining five cases on ground that there was no probability of their being convicted of any offence‑‑High Court rejecting such application because no evidence had yet been recorded in five cases and prosecution had evidence implicating petitioners Petitioners challenging legality of pending trials on ground that having been tried and acquitted in first case, they could not be tried again on same facts and similar charges‑‑It being premature to determine whether principle of S.403, Cr.P.C. would be applicable to facts of present case, Supreme Court refused leave to appeal with observation that it would be open to petitioners to raise the question before Trial Court.

Nazir Ahmad Siddiqi, Advocate‑on‑Record for Petitioners,

Sattar A. Shaikh, Advocate Supreme Court and Abdul Saeed Khan, Advocate‑on‑Record for the State.

Date of hearing: 10th August, 1986.

This petition for leave to appeal is directed against judgment, dated 2nd June, 1986, whereby a learned Single Judge of the Sind High Court dismissed the criminal miscellaneous application for quashment of proceedings against the petitioners pending in the Court of Special Judge, Anti‑Corruption, Karachi.

2. Briefly the facts are that petitioner Abdul Ghani was serving as Headmaster of the Union Lower Secondary School, Mehmoodabad, Karachi, and petitioner Muhammad Yousaf was the Sub‑Divisional Education Officer, Mehmoodabad, having jurisdiction over primary schools. In 1981, a report was received by the Director of Schools Education, Karachi Region, Karachi, that the salaries of 11 members of the staff with fictitious names including one peon had been drawn and disbursed by Abdul Ghani. According to the report, a total amount of Rs.76,908.34 was drawn fraudulently and disbursed on forged record during the period commencing from November, 1978, to November, 1980. Against petitioner Muhammad Yousaf the allegation was of connivance. Accordingly the matter was reported to the Anti‑Corruption Police and six separate cases were registered against the petitioners and challaned before the Court of Special Judge. Anti‑Corruption, Karachi. One out of the aforesaid six cases bearing No. 22/82 was tried and by judgment, dated 31st March, 1983, the trial Court acquitted the petitioners. In the remaining five cases before the trial Court, the petitioners made an application under section 265‑K, Cr.P.C. for their acquittal but by order, dated 11th June, 1983, this application was dismissed. Against the last mentioned order of the trial Court the petitioners filed five separate miscellaneous quashment applications, before the High Court which were later on consolidated. since the trial Court had also consolidated the five pending cases against the petitioners. By the impugned judgment a learned Single Judge of the High Court dismissed the five criminal quashment applications.

3. It was argued by the petitioners before the High Court that the evidence in Case No. 22/82, in which the petitioners were acquitted and in the pending five cases being identical, there was no probability of the petitioners being convicted of any offence in connection with five charges pending trial. It was further urged that in the aforesaid disposed of case the trial Court had given a finding that petitioner Abdul Ghani was not the Headmaster of the Primary School at the relevant time but was only the Headmaster of the Secondary School. Accordingly there was no possibility of the petitioners being convicted in the other five connected cases. These arguments were rejected by the learned Single Judge on the following reasoning:‑

"In these cases, it cannot be said at this stage that all the five cases, which have now been consolidated, will result in acquittal of the applicants. The prosecution has in its possession documentary evidence, on the basis of which the applicants might be implicated. The prosecution also has evidence which indicates that at the relevant time applicant No. l was Headmaster or Incharge of the Primary School also. In view of the evidence available with the prosecution, on the basis of the judgment in Case No. 22/82 it cannot be said, as rightly observed by the learned Special Judge, that there is no probability of the applicants being convicted of any offence. I have not considered it proper to make any detailed observations about the evidence recorded in Case No. 22/82 and the judgment, dated 31‑3‑1983 of the learned Special Judge acquitting the applicants in Case No. 22/82, as it may prejudice the case of the prosecution or the applicants. Suffice it is to state that no evidence has been recorded in these five cases so far and proceedings cannot be quashed on the ground that judgment has been given in Case No. 22/82 in favour of the applicants."

4. From the aforesaid statement of facts it will be observed that the petitioners were seeking acquittal from the five pending charges under the provisions of section 265‑K, Cr.P.C. on the ground that there was no probability of their being convicted of any offence. The ground urged was that on the same evidence in connection with one out of the six cases initially instituted, the petitioners had been acquitted. However, Mr. Nazir Ahmad Siddiqi, learned counsel appearing in support of the petitioners, did not urge this ground before us. He sought to challenge the legality of the pending trials on the ground that the petitioners having been tried by Court of‑competent jurisdiction and acquitted in the first case, they could not be tried again on the same facts on similar charges. In this behalf he invoked the provisions of section 403, Cr.P.C. Learned counsel attempted to fortify this submission by a somewhat involved argument by invoking the provisions of section 222, Cr.P.C. He argued that the prosecution was bound to join all the six charges and put the petitioners to one trial by virtue of subsection (2) of section 222, Cr.P.C. and having once split the charges, the benefit of acquittal was available to the petitioners and fresh trials were barred on the principle of autre fois acquit as embodied in section 403, Cr.P.C.

5. After hearing the learned counsel at length we are not satisfied that the present is a fit case for grant of leave. As observed above the question of law now pressed before us was not raised before the trial Court or the High Court, with the result that we do not have the benefit of the view of the Courts below on this aspect of the case. In the impugned judgment as reproduced above the learned Judge in the High Court, on examining the record was of the tentative opinion that the prosecution has evidence which may implicate the petitioners. In the circumstances it would be premature for us to determine the question whether the principle of section 403, Cr.P.C. would be applicable to the facts of the present case. It will, however, be open to the petitioners to raise this question before the trial Court whenever deemed fit and justifiable by them. With these observations this petition is dismissed.

M.I. Petition dismissed.

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