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Criminal Miscellaneous No. 4739 of 1967, decided on 27^th March 1968.

, S. 561‑A lnvestigating agency taking 3 years to complete investigation of case and trial itself lingering for over 2 ears‑Element of delay involved‑Held, not sufficient ground jar invocation of S. 561‑A for quashment of proceedings.

Muhammad Samiullah Khan and others v. The State P L D 1963 S C 237 and Ghulam Muhammad v. Muzammal Khan and 4othersP L D 1967 SC 317 rel.

, S. 526‑Transfer of case‑Transfer sought on ground that Police statements of prosecu tion witnesses were not supplied to accused before commencement of proceedings‑Defect capable of rectification by supply of such statements and commencement of proceedings afresh‑No other ground indicating lack of confidence in fairness of trial Court forthcoming‑Petition for transfer of case dismissed.

Khawaja Sultan Ahmad for Petitioner.

S. M. Bashir Addl. A.G. for the State.

Criminal Miscellaneous Nos. 4739 and 5088 to 5093 arc connected matters having been filed by the same petitioner In the first mentioned case quashment of proceedings against the petitioner in 134 cases registered under sections 406/420, P. P. C. pending in the Court of Mr. S A. Naqvi is sought whereas the remaining six petitions seek transfer of the cases from the Court of the same learned Magistrate.

2. The background of the cases may be summarized as follows: In the year 1961, Rana Asif Ali petitioner started banking business under the style of Rana Sahukara in Shah Alam Markst, Lahore. A loan limit up to 70,000 was sanctioned by the National Bank of Pakistan in favour of 'Rana Sahukara' which advanced loans to its customers on pledging of ornaments and jewellery. The jewellery pledged with it was in turn pledged by this firm with the National Bank of Pakistan from which it obtained loans on a rate of interest lower than the rate on which it advanced loan to its customers, and the difference between the two rates of interest constituted the profits of "Rana Sahukara". Unfortunately, on.7th October 1961 a dacoity was committed in the premises of "Rana Sahukara" which consequently sustained loss to the tune of Rs. 40,000 in the form of jewellery and articles pledged with it. It is stated by the learned counsel that sub sequently the dacoits on being apprehended were challaned and were convicted by the Military Court. The Rana Sahukara being relieved of such a huge sum was obviously faced with financial difficulties and could not satisfy the claims of all of its customers, one of whom Qari Ali Hassan feeling aggrieved, lodged a report against the petitioner on 28th of December 1962 on the basis of which case No. 261 of 1962 was registered against him under section 406/420, P.P.C. at Police Station Lohan Gate. In the course of investigation the statements of several other persons who felt similarly aggrieved, were recorded and consequently having taken about three years to complete the investigation, the police submitted challans against the petitioner and Muhammad Ilyss as employee of the Sahukara firm in 134 cases. It appears that these challans were submitted either towards the end of the year 1965 or early in 1966.

3. It is stated by the learned counsel for the petitioner that to start with, ten cases were picked out by the learned Magistrate, to be tried as test cases, but when these cases were transferred to the file of Mr. Naqvi, he simultaneously commenced proceedings in all the 134 cases. It would also be relevant to point out that allegations against the petitioner and his co‑accused Muhammad Ilyas which are common to almost all the cases are that the accused did not return the jewellery pledged with them, although the loan, had been repaid to them. Certain receipts and other documents also appears to have been taken into possession during investigation which are stated to have been forwarded to the Forensic Science Laboratory for comparison with the sample handwriting of the petitioner and his co‑accused.

4. The learned counsel for the petitioner has raised the following contentions :‑

(1) that the prosecution has not shown that a money lending licence which was a condition precedent for the commencement of bank business was ever issued in the name of the petitioner.

(2) that the receipts allegedly issued by the petitioner and his co‑accused Muhammad Ilyas purported to show the repay ment of loan advanced by Rana Sahukara though stated to have been forwarded to the Forensic Science Laboratory for purposes of comparison have been withheld by the prosecution;

(3) that at least in some cases the customers had admitted that they had repaid the loans after the date fixed for the redemption of the pledged jewellery which under the stipulated terms and conditions entitled the petitioner to dispose of the pledged jewellery; and

(4) that in any case, the matter being contractual in nature between the petitioner and his customers, did not give rise to criminal liability and at best called for civil action.

5. Having considered the contention raised by the learned counsel, I am unable to see that a case is made out for the quashment of proceedings. No doubt, the investigating agency took three years to complete the investigation and the trial itself, has lingered for over two years without having made considerable headway, nevertheless, neither the element of delay involved nor the other contentions raised by the learned counsel for the petitioner constitute sufficient grounds for the invocation of section 561‑A of the Criminal Procedure Code. It was held by their Lordships of the Supreme Court in Muhammad Samiulla Khan and others v. The State (P L D 1963 S C 237) as also reiterated in Ghulam Muhammad v. Muzammal Khan & 4 others (P L D 1967 S C 317) that the inherent jurisdiction conferred on this Court by section 561‑A is not meant to be utilized so as to divert the ordinary course of criminal procedure and the Court should be slow to interfere in exercise of this special jurisdiction whose scope is much more limited than that of section 439, Cr. P. Code, and that this power should not be invoked where an alternative remedy is available to any aggrieved person. In the latter case their Lordships of the Supreme Court set aside the order of the High Court quashing criminal proceedings inter alia on the ground that the case had lingered on for a period of about eight years. Repelling the arguments on the question of delay, it was observed by their Lordships: ‑

"If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of M. S. Khawaja v. The State P L D 1965 S C 287."

6. The learned counsel would be still within his right to raise all the contentions raised by him before this Court, before the trial Court at a proper stage. If, as alleged by the petitioner, the prosecution has withheld the reports of the Forensic Science Laboratory, obviously this would give rise to an adverse presumption against it. Likewise, the other contentions, which essentially relate to the merits of the case could appropriately be taken before the trial Magistrate.

7. In consequence the petition fails and is hereby dismissed.

8. As regards the six petitions Criminal Miscellaneous 5088 to 5093 of 1967, seeking transfer of cases, the main grievance of the learned counsel is that the Police statements of the prosecution witnesses were not supplied to the petitioner before the commencement of proceedings. This position has, however been controverted by the learned Magistrate in the report submitted by him. Even if the assertion made by the petitioner is presumed to be correct, the defect is capable of rectification by fresh supply J of these statements to the petitioner. There being no other ground indicating lack of confidence in the fairness of the learned trial Magistrate, I dismiss the petitions for transfer with the direction that copies of police statements of all the P. Ws. tray be' supplied to the petitioner in all the cases where such an objection has been taken by him and the proceedings should commence afresh. It might also be observed that every effort should be' made as far as possible for the expeditious disposal of these cases. The record of the cases may be returned to the trial Magistrate without any loss of time.

Petition dismissed.

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