2014 P Cr (PLP)

This petition filed by Muhammad Naeem, petitioner under section 439 read with section 561-A of the Cr.P.C. is directed against the order dated 27-2-2014 passed by learned Judge Special Court (Offences in Banks), Punjab, Lahore whereby application of the petitioner seeking acquittal under section 265-K, Cr.P.C. was dismissed.

2. Brief facts of the case are that Muhammad Amin, Operational Manager of National Bank of Pakistan Main Branch Bahawal Nagar lodged a criminal complaint vide F.I.R. No.4/09 under section 5(2) of the Prevention of Corruption Act, 1947 read with section 409, P.P.C. at Police Station F.I.A./C.B.C. Multan with the allegation that Muhammad Naeem, petitioner being Cashier of the said Bank embezzled an amount of Rs.14,94,000 from the bank. During investigation, the petitioner was found involved in the commission of offence and as such he was challaned to Court. At trial charge was framed against the petitioner on 30-5-2013 and the same was adjourned to 12-9-2013. On the next date of hearing i.e. 12-9-2013 the petitioner filed an application under section 265-K, Cr.P.C. seeking his acquittal on the grounds that during investigation no incriminating material was recovered from the person of the petitioner; that opinion of the Investigator is of no avail when nothing was recovered by the Investigator during investigation; that the petitioner has lodged a cross-version and there is every likelihood of his acquittal. Said application was dismissed by the learned Judge Special Court (Offences in Banks) vide the order impugned herein.

3. Learned counsel for the petitioner reiterated his arguments on the basis of the grounds formulated in the petition in detail and submits that there is every likelihood of acquittal of the petitioner and it would be futile exercise to keep the matter pending before the learned trial Court.

4. Learned counsel has been heard at length and record perused with his assistance. It is admitted fact that charge was framed against the petitioner on 30-5-2013 and the trial Court fixed 12-9-2013 as next date for further proceedings. On the said date the petitioner without waiting for any progress in trial moved an application for his acquittal. Record of the case clearly reflects that no adequate opportunity was given to the prosecution to prove its case. As per explicit allegation against the petitioner the embezzled amount was colossally huge. Admittedly recovery is corroborative piece of evidence but if there is any other convincing direct or indirect evidence available on record to prove culpability of the accused then absence of the same would not in any way be beneficial for the accused person facilitating him for the benefit of acquittal. When the law has provided an inquiry into the offence for which an accused has been sent up for trial, then ordinarily the procedure prescribed by law for deciding the fate of the case should be allowed to be carried out unless some extraordinary circumstance exists to abandon the regular course and to follow exceptional route. Perusal of copy of report under section 173, Cr.P.C. as also receipt dated 6-10-2010 appended as Annexure-A with this petition shows that after his arrest, certain amount was deposited in bank account on his behalf which prima facie displays his involvement in the crime. During investigation the petitioner was found involved in the commission of crime, therefore without affording the prosecution proper time to prove its case, it cannot be said that the prosecution has no case against the petitioner. It would not be out of place to mention here that trial Court is empowered either under section 249-A or under section 265-K, Cr.P.C., as the case may be, to acquit an accused at any stage of the trial. It would be advantageous to reproduce said provisions of law which are as under:-- 249A, Cr.P.C. Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. 265-K, Cr.P.C. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Court from acquitting accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. Both the above quoted provisions of law are co-extensive in nature. A bare perusal of these provisions would make it clear that an accused can be acquitted by a trial Court at any stage of the trial but this power can be exercised only if the court comes to the conclusion after hearing the prosecutor and the accused that the charge is groundless and there is no probability of accused being convicted. Guidance in this regard can be sought from the case reported as The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) wherein it has been held that usually a criminal case should be allowed to be decided on merits after recording of prosecution evidence and provisions of section 249-A/265-K of the Code of Criminal Procedure, 1989 hardly be pressed into action in deciding the fate of a criminal case at initial stage. In the present case the Investigating Agency collected certain evidence/material which prima facie showed that the petitioner had committed the crime and thus challaned him to court accordingly. It has also come on record in shape of report under section 173, Cr.P.C. and the receipt (Annex-A) that a considerable amount was deposited on behalf of the petitioner towards repayment of the amount allegedly embezzled by him. Therefore, at such an early stage it cannot be said that the prosecution had no material to establish guilt of the accused or that the charge was groundless. Learned counsel has not been able to show any illegality/irregularity in the impugned order. Consequently, we find no reason to interfere with the order passed by the learned trial Court. This petition is resultantly dismissed in limine. HBT/M-151/L Petition dismissed.