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Criminal Miscellaneous Nos. 86/Q and 95/Q to 98/Q of 1981, decided on 9th April, 1983.
‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 409, 419, 420, 467, 468 & 471/109‑‑Quashing of proceedings‑‑Delay in concluding trial‑‑Case adjourned for scores of dates during period of about four years‑‑Evidence of not a single witness recorded‑‑No justification shown for prosecution for not producing evidence‑‑Public money amounting to Rs.8 lacs misappropriated‑‑Accused, held, was not entitled to benefit of laches on part of prosecution‑‑Exercise of powers under S. 561‑A, Cr.P.C. declined in circumstances.
Muhammad Usman for Petitioner.
Tanveer Ahmad Khan A.A.‑G. for the State.
Malik Amjad Khan for the Complainant.
Date of hearing: 9th April, 1983.
The petitioner has filed Quashment Petitions Nos. 86, 95, 96, 97 and 98 of 1981. All these petitions pertain to case F.I.R. No.328. The grounds taken in all the petitions are one and the same and the petitions have also arisen from the same F.I.R. These petitions are being disposed of by one order.
2. A case under sections 409/468/467/471/420/419 and 109, P.P.C. was registered at Police Station Baghbanpura vide F.I.R. No.328 on 5‑11‑1970. The allegation is that Habib Bank Limited, Gowalmandi Branch has been defrauded of a sum of about Rs.8 lacs. After investigation 5 challans were put in the Court against the petitioner, Muhammad Sadiq Butt and Athar Ali Zaidi, Bank Manager on 7‑12‑1974. The accused who had been granted bail were summoned by the trial Court. Athar Ali Zaidi did not appear for about 15 dates, after taking necessary proceedings he was declared absconder and proceedings under section 512, Cr.P.C. were directed to be taken against him.
3. The charge was framed against the petitioner and his co‑accused Muhammad Sadiq Butt on 8‑4‑1977. Thereafter proceedings continued till the present petitions were filed on 10‑3‑1981. The petitions were admitted to hearing on 11‑3‑1981 and thereafter further proceedings were suspended by the trial Court (although no such order was passed by this Court).
4. Learned counsel for the petitioner have contended that in spite of the fact that the case was adjourned for scores of dates from 8‑4‑1977 to 9‑3‑1981. The evidence, of not a single witness has been recorded. It is contended that the petitioner never absented on any date of hearing on which P. Ws were present. He has contended that the petitioner even did not absent on any date for which the case was fixed for recording evidence and that the responsibility of not examining the prosecution evidence is entirely on the State. The learned counsel has specifically stated that he does not press the quashment of petitions on any other ground except the ground of delay in concluding the trial.
5. Learned counsel for the State and complainant have submitted that although the evidence could not be produced on so many dates but the fact remains that the petitioner had absented after the charge on seven dates and his co‑accused Muhammad Sadiq Butt had also absented on seven dates other than the dates on which the petitioner was absent.
6. Learned counsel for the complainant has filed an uncertified copy of the order sheet. According to the order sheet the case was adjourned on some dates as the Presiding Officer had gone to participate in the proceedings before a Military Court. On 2/3 dates the learned Presiding Officer was on leave. On 22‑7‑1978 one witness was present but Muhammad Sadiq Butt co‑accused of the petitioner was absent and his evidence could not be recorded. On 24‑1‑1979 two witnesses were present but the evidence could not be recorded as the counsel for the accused had sought adjournment because of illness. On 24‑12‑1979 the petitioner had filed an application under section 249‑A, Cr.P.C. for hearing arguments on which some adjournments were granted either for the reason of absence of the petitioner or for some other reason. For about 7/8 dates evidence was not summoned.
7. Although there seems to be no justification for the prosecution to have not produced the, P.Ws. for getting the case concluded, still I am not inclined to exercise powers under section 561‑A, Cr.P.C. in quashing the proceedings for the reason that public money amounting to about Rs.8 Lacs has been misappropriated and the accused cannot be given merely the benefit of the laches on the part of the prosecution. Under the circumstances, quashment petitions are dismissed. The trial Court is, however, directed to conclude the trial within six months. The prosecution shall make arrangements to produce the evidence as and when summoned.
8. Before parting I would like to remark that the performance of the prosecution and of the process serving agency in this case has been reprehensible. It is stated that the investigation was conducted by the Crimes Branch and the challans were also submitted by the same Branch. The matter shall be brought to the notice of the Deputy Inspector‑General of Police, Crimes Branch, who shall take steps to procure the attendance of the P.Ws.
S.A./M‑20/L Quashment declined.
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