1984 P Cr (PLP)

2. Copies of statements under section 161, Cr. P. C. were supplied to the petitioner on 5th April, 1982. Subsequently, on 19th April, 1982 charge under section 468/471, P. P. C. was framed against the petitioner. Thereafter, the case suffered more than 30 adjournments but only 6 out of 20 prosecution witnesses cited in the calendar of witnesses have so far been examined. First prosecution witness was examined on 19th August, 1982. Two more witnesses were examined on 2nd November, 1982. Fourth witness was examined on 26th March, 1983. Fifth witness was examined on 22nd of August, 1983 and the last i.e. the sixth witness was examined, on 20th September, 1983. As is evident from the copy of the order sheet Annexure 'D'.

3. It transpires from the contents of Annexure `K' and Annexure ' L', copies of reports, dated 17th July, 1977 and 5th February, 1979, respec tively of Examiners of the questioned documents of F. I. A. Islamabad, that the questioned writing of the endorsement in question does not tally in characteristics with the specimen writings obtained from the petitioner. It has further been opined that no definite opinion could be given about the questioned signatures on the endorsement in question as to whether in fact they were of the Minister or not. Similarly, it has been opined that the questioned type script did not tally with a specimen type script and the seal impression of the questioned endorsement did not tally with the seal impressions marked as S. 3, S. 4 and S. 5.

4. Out of the 6 P. Ws. who have so far been examined by the trial Court, only one witness namely P. W. 2 Shamim Ahmad Khan, U. D. C. of the office of General Manager, Telephones, Lahore, has named Sami Ullah Khan, petitioner to say that the petitioner had approached him to enquire as to whether General Manager could sanction the telex connection and the witness informed him that such a connection could be sanctioned by the Minister.

5. This statement cannot by any stretch of imagination be treated as inculpatory. Thus, no evidence so far has come on the records against the A petitioner to suggest that he was liable for the commission of offence) punishable under section 468/471, P. P. C.

6. It appears that on 10th August, 1983 the petitioner submitted an application under section 249-A, Cr. P. C. seeking his acquittal on the ground that the charge against him was groundless and there was no probability of his conviction of any offence. This application of the peti tioner was, however, rejected by the learned Magistrate, vide his order dated 23rd November, 1983 (Annexure Q'). It was held that section 249-A, Cr. P. C. stood omitted as Ordinance No. XXVII of 1981 whereby this section was inserted had since been repealed. It was further held that the stage at which this application was presented was not a proper stage to find that the charge against the petitioner was groundless.

7. The petitioner thereafter went in Revision before a learned Addi tional Sessions Judge who found that Court of Sessions in exercise of its revisional jurisdiction could not pass an order of acquittal under section 249-A, Cr. P. C. in a case pending trial before a subordinate Court of a Magistrate. Hence the present petition for revision.

8. Needless to say that the petitioner in the alternative has claimed the quashment of the proceedings under section 561-A of the Code of Criminal Procedure.

9. Undoubtedly the observation of the learned Magistrate that after the repeal of Ordinance No. XXVII of 1981, section 249-A, Cr. P. C. stood omitted is fallacious on the face of it. Ordinance No. XXVII of 1981, was an amending Ordinance and by the said Ordinance, sec tion 249-A, Cr. P. C. was inter alia inserted in the Code of Criminal Procedure.

10. It is an established proposition of law which has a statutory sanction behind by virtue of section 6 of the General Clauses Act, that the moment an amending Ordinance is enforced, the amendments brought about by it take effect in the principal enactment and such amending Ordinance thereafter becomes a spent up law. Its subsequent repeal does not affect the previous operation of such an enactment. Object of repeal of an amending Ordinance is to get rid of a spent up (obsolete law) and its repeal cannot take away the effect as already created. Thus, section 249-A.I Cr. P. C. cannot be considered to have been omitted on account of repeal of the Ordinance No. XXVII of 1981.

11. Similarly, the view expressed by the learned Additional Sessions Judge, in his order, dated 3rd January, 1984 whereby he has dismissed the revision petition of the petitioner holding that in exercise of revisional jurisdiction under section 439-A, Cr. P. C. Sessions Court could not order acquittal in respect of a case pending before a subordinate Court of a Magistrate is also erroneous because under section 439-A, Cr. P. C., a Sessions Judge or an Additional Sessions Judge may exercise any of the C powers conferred on the High Court by section 439, Cr. P. C. in case of any proceedings before a Magistrate, the record of which has been called for by the learned Sessions Judge or which otherwise comes to his know ledge. Under section 439 (ibid), High Court may in its discretion exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and

428. Similarly, under section 435, the High Court or a Sessions Judge may call for and examine the record of any proceedings before any Criminal Court for purposes of satisfying itself or himself as to the correct ness, legality or propriety of any findings, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court.

12. In Muhammad Rafiq v. The State (1978 P Cr. L J 649), it was held:- "The scope of revision under the criminal law is distinct from and wider than that under the civil law, inasmuch as the power is not confined as to jurisdictional defects only in the impugned order. Section 435, Cr. P. C. fully empowers the revisional Court to satisfy itself as to correctness, legality, or propriety of any findings sentence or order recorded or passed and as to the regularity of any proceed ings of such inferior Court. It is thus obvious that the learned Additional Sessions Judge has not exercised jurisdiction conferred on him by law. This had occasioned a failure of justice and calls for interference under section 561-A, Cr. P. C."

13. In The State v. Saleh and another (P L D 1980 Kar. 131), the High Court in exercise of its revisional jurisdiction ordered the acquittal of the accused under section 249-A, Cr. P. C. as the prosecution had been unable to produce even a single witness and the case was pending in the subordinate Court since 5/6 years.

14. In Ghulam Muhammad v. Mozammal Khan and others (P L D 1967 S C 317), it was held that the inherent jurisdiction of the High Court under section 561-A. Cr. P. C. should not normally be invoked where another remedy under section 435 or 439, Cr. P. C. is available. Similar view was expressed in Muhammad Sami Ullah Khan and another v. The State (P L D 1963 S C 237).

15. As for merits of the case, the allegations in the F. I. R. were against Messrs Shifa Medico a juristic person and not against the petitioner, the Managing Partner of the said firm. Under section 11 of the Pakistan Penal Code, the word 'person' includes any company or body of persons, whether incorporated or not.

16. In Superintendent of Police, Federal Investigation Agency Lahore v. Akhtar Hussain Bhutta (P L D 1978 S C 193), it was held that when the offence has allegedly been committed by the Company, liability of Managing Director of Company could arise only when such person was shown to n have committed the offence on behalf of the Company. No such allegation having been made in the challan submitted to the trial Court, Manag ing Director could not be held liable just because of happening to be Company's Managing Director.

17. In Chiragh Ali Chishti v. Abdul Ghaffar and another (P L D 1961 Lah. 875), it was found that a Company or Corporation may be prosecuted and held criminally liable except in cases of those offences which cannot be com mitted vicariously or for which punishment must of necessity be only imprisonment.

18. As already observed, in the circumstances of this case, there is not an iota of evidence on the record to show that offence of forgery has been committed by the petitioner or that he has tried to avail of a forgery document knowing the same to be a forged one. It has also been noticed that despite of more than 30 adjournments, the prosecution has been able to produce only 6 out of 20 P. Ws. enumerated in the calendar of witnesses.

19. The learned counsel for the State has not been able to repel the arguments advanced on behalf of the petitioner and he merely submit ted that efforts would be made to conclude the trial in this case in the near future. This assurance does not set at naught the pleas advanced on behalf of the petitioner.

20. In Mushtaq Ahmad and others v. The State (P L D 1963 Quetta 13), it was held that it would be an abuse of the process of the Court if the prosecution were allowed to go on merrily to produce its witnesses as it chose to do so and be contented that merely routine orders from the Court of issuing process for the witnesses without the prosecution itself making any effective and a conscious effort to have the service of the witnesses effected or to arrange for their production in the Court. In Mansab Ali etc. v. The State (1977 P Cr. L J 461), prosecution had failed to produce evidence despite 16 adjournments. It was, therefore, held that conduct of the prosecution amounted to abuse of the process of the Court and the proceedings were thus quashed.

21. In the light of what has been said above, the under consideration Revision Petition is allowed. The impugned orders passed by the learned Magistrate and the learned Additional Sessions Judge are set aside and the petitioner is acquitted under section 249-A of the Code of Criminal Procedure. M. Y. H. Petition allowed.