P L D 1960 (W (PLP)

(Note:‑The document Exh. 18 is a true copy and not the original one. It is taken on record provided the original one is produced. The complainant states that the original one is with him and that he would produce it on the return of his wife from Bombay who is in possession of the key of the lock up). I then asked the accused to compare the statement of account with the entries in the account books and produce them before me. The accused again avoided to show the account books to me for three or four days and thereafter he had taken all the account books to his house where we both stayed. The accused did not show me the account books and he began to quarrel with me and thereafter he refused to show me the account books. The accused did not show me the account books even upto this date. The accused then left my house and began to reside with his father‑in‑law accused No. 2, on 8‑2‑1954." Even in respect of the case of forgery said: to have been committed by accused No. I this is what the complainant has said in his evidence "The document "A" also bears the signature of my accused son. It is marked Exh.

21. The document "B" bears the signature of accused son. It is marked Exh.

22. I do not know who has signed the second part of Exh.

22. The accused son M. Hussain had purchased with my money 800 shares in Habib Bank, Karachi. I came to know from the bank that the accused No. 1 had disposed of these shares after forging my signatures thereon, and the bank showed me the 21 Transfer Forms D/1 to D/21, which do not bear my sig nature. These forms D/1 to D/21 also bear the signature of accused No. 1 As far as I think the accused No. 1 has signed my signatures on them. . ..I am shown 24 forms marked Exhs. G‑1 to G.24 placed on record. I had sent similar forms from Bombay to my son, accused No. 1 bearing my genuine signatures. Exhs. G‑1 to G‑24 do not bear my signatures. Exhs. G. I to G‑24 bear the signatures of my son accused No. 1 in the column for transferee's signature and he has also signed my signatures in the same column in all these 24 forms. These documents G‑I to G‑24 are marked Exhs. 24 to Exh.

47. I am shown transfer forms documents D‑1 to D‑

21. They do not bear my signatures. Accused No. 1 has signed his signatures in the column transfer or signatures. He has also signed my signatures in the same column. D‑1 to D‑21 marked as Exh. 48 to

68. He sold these shares for the sum of Rs. 59,

800. The shares he has deposited in account No. 7171 Exh. 23 on 5th October, 1953." The idea with which the complainant had filed the complaint against the accused can be well evident from his statement which reads as under "I have filed a civil suit against accused No. 1 and his wife in respect of the amount the subject‑matter of this criminal case, in Chief Court, I am shown the certified copy of the plaint in Suit No. 516/1954 pending in the Chief Court between us. It is marked Exh.

69. The present complaint has been drafted by my advocate under my instructions and the complaint is quite correct. When I filed the present complaint, I had an apprehension that the accused might abscond from Pakistan and this is why I had made the request to the Court for issuing war rant against the accused. The complaint was filed in Court on 1‑4‑54 and warrants were issued by the Court. I do not know whether those warrants were given to the clerk of my advocate on that very day. On enquiry I learnt that the warrant were received by the clerk of my advocate. I did not get those warrants executed against the accused as 1 thought that I Hill succeed in persuading my son to adjust the account." The passages from the evidence of the complainant referred to above clearly indicate that the complainant had no intention of filing this complaint. He had done so with a . view merely to coerce accused No. 1 into a situation where he would render accounts to him. In fact he has admitted that he asked for warrants from the Court to be issued in the first instance against the accused also with a view to coerce them into a compromise.

7. In order that an offence under section 403 or 406 P. P. C. be made out it is necessary for the complainant to show that the accused have dishonestly misappropriated or converted to their own use any property entrusted to them. The two things A that are necessarily required to be proved are the entrustment of the property and dishonest misappropriation or conversion to one's own use or disposal of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do. The evidence of the complainant would be best show that there were certain moneys that had been entrusted to the accused No.

1. There is however no indication from his evidence as to how they are misappropriated or converted to the use of the accused No.

1. In order to prove a criminal offence the specific evidence has to be brought on record proving the ingredients of the offence very strictly. The complainant in his evidence merely wishes to show that monies had been entrusted to accused No. 1 and on account of his non‑accounting for them an inference must be drawn that they have been misappropriated. The businesses admittedly were running in the name of accused No. 1 and his brothers and that the accounts in various banks also stood in the names of those firms. The accused No. 1 was authorised to draw from those accounts and if he did so he had committed no offence provided he was shown to have committed a breach of trust by misappropriating that money. The concerted effort on the part of the complainant throughout was to ask the accused No. 1 to render accounts to him and it was with this object in view that the complainant had filed a civil suit by which the accused No. 1 was called upon to render accounts.

8. The other evidence that has been brought on record is either of people from various banks or of other persons who knew the parties. The witnesses, from the banks merely showed that certain accounts had been opened in the name of accused No. I and his brothers and that there was so much money in the account initially and that at the time of their evidence so much money was left. They had absolutely no evidence to give as to the manner in which the money came to be with the accused and also as to the dealings that existed between the complainant and the accused No.

1. The other witnesses who are friends of the parties have been examined on the issue that there was a dispute between the complainant and his son accused No. 1, on question of accounts and that they had been brought in as intermediaries to settle those accounts. The evidence of some of those witnesses is that they had tried their utmost to have the disputes settled and they had also decided that the accused should pay between Rs. 3 to 4 lacs to the complainant and have the whole matter finally settled. According to their evidence the complainant did not accept the terms and further insisted on Rs. 1,000, per month to be paid by accused No. I to him for the rest of his life. The talks of compromise between the parties failed. The evidence of all these witnesses therefore has no bearing on the question of the accused having committed any criminal offence. The entire evidence on which the decision of this case depends is the evidence of the complainant alone. The evidence of the complainant, as already stated, has not been C able to establish any criminal offence of which a charge against, accused No. 1 could be framed.

9. The evidence against accused No. 2 is absolutely negligible. He has been brought in as an abettor merely because he had introduced the accused No. 1 to a bank on the strength of which the accused No. 1 had been able to get a cheque book from the bank. Even if the evidence of the complainant, which is the only evidence on this point, were to be accepted, it is difficult for any one to hold that the accused No. 2 was an abettor. Admittedly the complainant has no further evidence to be brought on record in so far as the accused No. 2 is concerned.

10. The learned counsel for the complainant made an application before me on 12th September, 1960, that he should be permitted to examine six more witnesses before final decision in the case be given. Those witnesses are (1) Agents of Habib Bank Ltd., (2) Roshanali K. Porbunderwala, Manager/Accountant of the firms in Karachi, (3) Mst. Zeenat Salim Abdullah, sister of accused No. I, (4) Mrs. Rehmatbai Shakoor Patel, mother of accused No. 1, (5) Noor Ali Shakoor Patel, brother of accused No. 1 and (6) Ali Muhammad Soomar, Accountant. Out of those six witnesses, witnesses Nos. 3, 4 and 5 are sister, mother and brother of the accused No.

1. Their evidence, even if allowed to be brought on record, will not be on a higher level than the evidence given by the complainant. I doubt, if they are examined, they will say anything more than what the complainant has said. It is admitted that the complainant has no documents to produce. The evidence of Mst. Zeenat, Mrs. Rehmatbai and Noor Ali Shakoor Patel will be oral and cannot be in anyway better than the evidence of the complainant. For the purpose of showing that the complainant has no documentary evidence to produce I will only refer to some of his statements :‑ "The account books relating to this business were in posses sion of the Director in 1951 but now I cannot say whether that position is still correct. After 1942, the business styled Patel & Sons Limited was our only business. I cannot give the details of the losses and profits of the said business relating to years 1942 to 1951. In later years, it was running in loss. I had collected this saving of 16 lakhs from 1950. This amount of Rs. 16 lakhs was lying idle with me during all these years. I cannot send for my private Khata from Bombay till I go personally to Bombay and bring it myself. The Khata was there but I cannot say whether I could be able to trace that out. I had kept it in my cup‑board at my house in Bombay. My wife used to keep it. I will try to get that Khata by writing to my wife, although she is illiterate. I may be able to get the answer from my wife about this Khata within a fortnight . . . . . . . . . . . . . . The Khatas which are private which show my bringing Rs. 16 Lakhs to Karachi are still in Bombay. I wrote to my wife in Bombay to send them to me back. She is very ill and in hospital there and I received no reply. I wrote to her after the last date of hearing. I sent no reminder as she is very ill. I have no copy of the letter I sent to her. I have receipts of same amount sent by me by telegraphic transfer (T.T.) from Bombay to Karachi and these are in Bombay. Since my wife is ill, I cannot get them. As long as my wife does not recover, I cannot get them as I am unable to go away from Karachi myself . . . . . . I do not go to Bombay, these papers cannot be secured from there. Hence there is no chance for me to produce them in Court here . . . . . . . . . . . My wife has informed me now that as regards papers relating to 16 lacs of rupees lying at my house some of these were given or sent to the accused and some were destroyed due to fear of the Custodian." In view, therefore, of the statements made by the complainant it is not possible to get any evidence worth the name from these witnesses. Out of the three remaining witnesses one is shown as the Agents of Habib Bank Limited. His evidence obviously will not advance the case of the complainant in establishing a criminal offence against the accused. The other two witnesses are also accountants and have ‑no documentary evidence to give in view of the statements of the complainant referred to above. Out of these six witnesses, witnesses Nos. 4, 5 and 6 live in Bombay. It is difficult for the attendance of these witnesses to be secured before considerable time elapses. No useful purpose, therefore, will be served by giving further time to the complainant to produce further evidence in substantiation of the charges against the accused.

11. The case has trailed along from April 1954 to April 1960 without any substantial result having come out of it. The argument advanced at the Bar on behalf of the complainant is that the complainant was not at fault for dragging the proceedings. A lot of time, according to him, has been devoted to the case in the revisions before the Sessions Court and the High Court. Looking at the gravity and the magnitude of the offence and the time taken in disposal of the revision applications filed before the Sessions Court and the High Court I had given another opportunity to the complainant to produce all the available witnesses with him to have the proceedings concluded. Even after the case went from High Court there have been 30 hearings in the case out of which the case has proceeded on 12 hearings. Even on these 12 hearings about 10 witnesses have been examined. The remaining 18 hearings have been of adjournments out of which 14 hearings have been at the instance of either non- presence of the witnesses or on account of the parties wishing to have time for compromise. Even after the case was sent from High Court there have been as many as four hearings on which the case has been adjourned for a chance being given to the parties to compromise. Those hearings are 10th October 1959, 30th October 1959, 14th November 1959 and 20th November 1959. How could the case be compromised when process was issued for offence under section 406, P. P. C., is not known. The parties cannot be permitted to play in the matters of justice like this.

12. The complaint and the evidence clearly disclose that the case is of a civil nature and has been filed purely with an idea to have the accounts with accused No. 1 settled. All this protraction in this case has been resorted to with a view to have the accounts settled. I will only quote few cases on which reliance has been placed before I conclude my judgment. One such case is reported in Muhammad Hussain v. The State (PLD 1959 Lah. 322). It has been observed in that case as under " If the prosecution does not take care to see that a case against an accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its progress, the fault must lie at its door, whether for non‑production of sanction, the witnesses, the co‑accused from jail, or by frequent transfers of case from Court to Court, by change of law or by the conduct of the prosecutor. The intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay. It is a mockery of law to allow criminal cases to proceed for four or five years without any progress. It is revolving to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided. If the prosecution fails persistently without reasonable cause to produce its witnesses, or seeks adjournments unjustifiably, it is the duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise. A fair and speedy trial is the essence and essential of judicial H, administration in a civilised country. Protracted proceedings are a mockery of the law and must be deemed to be an abuse of process of Court. In such cases the High Court has ample powers to set aside the proceedings in exercise of powers under section 561‑A of the Criminal Procedure Code." The other case is Fazal Karim v. The State (P L D 1957 Lah. 837). In this case it was held as under " Keeping a criminal case pending for five long years without doing anything substantial amounted to excessive abuse of process of law and denial of justice, and proceedings must, in the circumstances, be quashed."

13. In view of what has been said above, I do not consider it worthwhile to permit this case to proceed any further. In the first instance no criminal offence seems to have been made out from the evidence on record. Even if further opportunity is given to the complainant there is not much chance of the evidence to be brought on record substantiating the offences which the accused are said to have committed. Apart from that the time taken in the case is so long that it will not be fair in the interest of justice to permit the proceedings to continue for a day longer. The civil suit pending between the parties is also substantially on the same issues. For these reasons I allow the reference and quash the proceedings against the accused. A.H. Proceedings quashed.