1968 P Cr (PLP)

Zafar Iqbal Pasha for Appellant. Kh. Saeed‑ul‑Hassan for A.G. for the State. Two appeals bearing Nos. 934 and 936 of 1962 filed by the same appellant against the judgment of Khan Abdur Rahim Khan, Additional District Magistrate, Sialkot, who tried the case as a Special Judge under the Pakistan Criminal Law Amendment Act, 1958 were filed by different counsel and ultimately were consolidated by the order of my brother Muhammad Iqbal, J., dated 17‑12‑1962. Actually a petition for the withdrawal of one of the appeals was made but consolidation was ordered possibly to obviate contradictory decisions in the same case. 2 The facts, which gave rise to this case are these. The appellant was a Taccavi Clerk in Tehsil Pasrur, District Sialkot Jamshed Ahmad P. W. 1 handed him over on 25‑12‑1956 a sum of Rs. 345 as repayment of Taccavi loan, which the father of this witness had raised. It is alleged that instead of depositing this money in the Treasury as undertaken by him, the appellant misappropriated he same. Jamshed Ahmad P. W. after coming to know of the failure of the appellant to deposit the amount in the Treasury moved the Tahsildar in this behalf. An enquiry was conducted in the matter and the Deputy Commissioner, Sialkot vide Memo. Exh. P. E. dated 24‑7‑57 lodged an F. I. R. The case was registered on 8‑8‑57 but the accused was discharged after recording some evidence on 29‑9‑60 on the ground that the sanction was not proper.

3. A revision was taken by the State to the High Court against the order of discharge, which was accepted and the case was remanded for re‑trial. After the remand, the case was tried by Mr. Abdur Rahim Khan, A. D. M., Sialkot in his capacity as a Special Judge, who found the accused guilty under section 406 of the Pakistan Penal Code and sentenced him to 6 months R. I. and a fine of Rs.

400. In default of the payment of fine, the appellant was directed to undergo rigorous imprisonment for 6 months more.

4. One of the arguments advanced on behalf of the appellant is that the learned Special Judge, who tried the case had not worked as A. D. M. for three years and was, therefore, not empowered under subsection (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1958 to exercise the powers of a Special Judge under the above Act. The learned counsel for the State sought an adjournment to have written instructions from the Government. He has placed on record letter No. 8‑12/68 (S. O. IX), dated 13‑3‑68, from the Services & General Administration Department, Government of West Pakistan, Lahore. It is stated in para. 2 of this letter that Khan Abdur Rahim, the learned Special Judge who tried the case had not exercised the powers of A. D. M. when he took over as such at Sialkot on 15‑6‑

62. It would, therefore, appear that the learned trial Court had no jurisdiction to try an offence mentioned in Schedule II to the Criminal Amendment Act, 1958.

5. The conviction and sentence of the appellant is, therefore, set aside.

6. The next question is whether a re‑trial should or should not be ordered in this case. The case was registered on 8‑8‑1957 and it is about 10J years that the proceedings against the appellant started. The learned counsel for the appellant bas referred t4 the case of Basanta Kumar Chaudhary v. State (P L D 1952 Dacca 61) wherein it was, held by a Division Bench of the East Pakistan High Court that where the trial of a person had dragged on for about 7 years, a re‑trial should not be ordered.

7. As ha: been pointed out earlier, the case against the appellant was registered on 8‑8‑1957 and he had to face the vicissitudes of a trial twice, once when he was discharged and for the second time when he was convicted on 13‑11‑1962. More than 5 years have passed since the institution of the appeal. . He has undergone about three weeks imprisonment and has also been removed from service. In the circumstance: of the case, I do not think, it would be advisable to order his re‑trial. The appeal is allowed in the above terms. Appeal accepted.