1997 PLP 1475 (MLD)

A case under sections 406, 408, 468, 471 and 420, P.P.C. was registered against the petitioners at Police Station, Naushera, Tehsil and District Khushab vide F.I.R. No.54, dated 2‑6‑1994 upon the report lodged by one Muhammad Amir.

2. The petitioner No. l worked as Manager, Habib Bank Limited, Mardwal Branch, District Khushab and also performed part time duty as cashier with the complainant at his Wagon Addah. Petitioner No.2 namely Muhammad Iqbal is real nephew of complainant Muhammad Amir and also managed the transport business of the complainant which consisted of 19 Coaches plying between Sargodha to Khushab and vice versa under the name and Style "Nisal Awan Coach Service".

3. The petitioners during their engagement with the complainant allegedly committed fraud and also misappropriated huge amount of approximately 29 lacs. The dispute was taken to the Civil Court for settlement through arbitration. The Arbitrator rendered Award for a part of amount and left the parties to settle dispute regarding rest of the amount i.e. approximately 18 lacs.

4. The petitioners challenged the registration of the case and applied for quashment of F. I. R. through W. P. No. 10792 of 1994, which was dismissed by my learned brother Ahmad Saeed Awan, J. on 7‑11‑1994. The petitioners feeling aggrieved agitated the matter in Intra‑Court Appeal, which was also dismissed on 13‑11‑1994 by a Division Bench consisting of my learned brothers Ch. Mushtaq Ahmad Khan and Sharif Hussain Bokhari, JJ.

5. The investigation connected both the petitioners with the offences levelled against them in the F.I.R. As such a report under section 173, Cr.P.C. was submitted to the Court concerned. Thereafter the petitioners challenged the proceedings in the trial Court by moving an application for their acquittal under section 249‑A, Cr.P.C, but the same was dismissed. Still feeling aggrieved the present petition for quashment is moved under section 561‑A, Cr.P.C. on the ground that continuation of proceedings in the trial Court would amount to abuse of process of law. In this regard, it is contended that misappropriation of money spread over a period of more than 3 years starting from 1989 to 1993 and as such all the amounts allegedly misappropriated during that period could not be clubbed together to frame a charge for trial of the petitioners. In that respect reference was made to sections 222 and 234, Cr.P.C. which required that no such transactions could be joined in a charge if the parts of series relate to a period beyond one year. It was, therefore, contended that the charge before the learned trial Court would be violative of law and as such proceedings or trial following the charge would tantamount to the abuse of Court procedure. Reliance was placed on Muhammad Ayub Qureshi v. The State reported in PLD 1987 Azad J&K 131 and Malik Murid Sadiq v. The State reported in 1968 PCr.LJ 657 Lahore. As such it was contended that no conviction or sentence could be passed on account of misjoinder of charges for the misappropriated amount spread over three years.

6. Lastly it was contended that documents connecting the petitioners with the occurrence and collected by the police have not been sent to the Finger/Handwriting Expert for expert opinion so as to find out that the same were prepared by the petitioners. It was, therefore, urged that there was no material on record to show that there was any breach of trust leading to the offences of misappropriation of money or embezzlement.

7. I have taken into account the foregoing facts and the material placed on record. It is clear that the petitioners instead of facing the investigation and the trial have put up every resistance to the matter in issue by invoking extraordinary jurisdiction of this Court under the Constitution by filing unsuccessful writ petition and I.C.A. as pointed out above. It was found earlier in those proceedings that mere fact that the matter was taken to the Civil Court would not ipso facto exclude the criminal remedy which existed side by side under the criminal law. The petitioners also made an attempt in vain by moving a petition under section 249‑A, Cr.P.C. for their acquittal on the ground that no case was made out and that the charge framed would be violative of sections 222 and 234, Cr.P.C. That petition was also dismissed for the reasons that there was enough evidence to proceed with the trial.

8. 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 petitioner, 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 take an objection if the charge is not correctly framed or is violative of any provision 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 this stage. when the charge is yet to be framed but it is enough to say that it is a fit case for judicial test.

9. This petition for quashment is misconceived at this stage. It is accordingly dismissed in limine. N.H.Q./M‑133/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.