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Criminal Miscellaneous No. 258/Q of 1979 decided on 2nd May, 1979.

--- Ss. 249-A & 561-A-Quashment of proceedings-Contention that complaint instituted with mala fide and process of law being abused to harass and humiliate petitioners-Section 249-A, held, an adequate and alternative remedy-Practice and procedure-Courts having concurrent jurisdiction, Court of first instance to adjudicate matter first-Petitioner if so advised to make application to trial Court in first instance in circumstances of case.-[Practice and procedure].

Khushi Muhammad and 4 others v. The State 1979 S C M R 94; Manzoorul Haq Sajid v. The State P L D 1979 Lah. 682 and Din Muhammad v. Muhammad Sharif and another P L D 1979 B J 12 eel.

Muhammad Saleem Koreja for Petitioners.

Riaz Anwar for Respondent No. 1.

The petitioners have been summoned by Mr. Mushtaq Abroad Chaudhry, Magistrate Section 30, Mailsi vide orders dated the 15th October, 1978 (Annexure D') as accused for offences alleged under sections 406 and 420 of the Pakistan Penal Code.

2. The case for the prosecution succinctly stated is that the com plainant knew the three petitioners, i.e. Taj Muhammad and his two sisters, namely, Mst. Nasreen and Mst. Shamshad Begum and that about a year prior to the institution of private complaint the three petitioners approached the complainant Sher Alam for entrusting them a sum of Rs. 5,000 which they would return after a week which the complainant did in the presence of Muhammad Rafiq and Shamimuddin, but the three petitioners did not return the same after a week and proclaimed that they never intended to pay.

3. I noticed the following points on a bare reading of the first in. formation report: --

(a) That there was a delay of nearly one year in filing the private complaint;

(b) That the entrustment was alleged to make the alleged incident non-bailable;

(c) That it was difficult to believe that the respondent 'Sher Alam, i.e. the complainant, a retired foot constable (according to the petitioners a dismissed constable) would lend Rs. 5,000 to the petitioners on a mere asking and more particularly without a receipt; and

(d) That the petitioners were not a bank where the respondent/ complainant could entrust the money for a week for safe custody.

From the various applications on record, it appears that both sides seem to be living on prostitution, alleging each other to be kanjars. It further appears that the dispute basically relates to the "possession" of a 10 months old daughter of Mst. Nasreen (petitioner No. 2). I need not mention that in that society the girl being the prospective source of income is often a bone of contention, and this may be the real cause of litigation.

I, therefore, admitted this application for quashment to hearing, sought parawise comments and directed the trial Magistrate to attend this Court in person, and have drawn his attention to these aspects.

4. The learned counsel for the petitioners has contended: -

(a) that the private complaint has been instituted with mala fides and the process of law was being abused to harass and humiliate the petitioners which include two ladies ;

(b) that the respondent was very influential and personal interest in the trial Court is alleged to be working to the prejudice of the petitioners ; and

(c) that appearance in a Court at Mailsi involves risk to the person of the petitioners, and therefore, in the alternative learned counsel prays for the transfer of this case to any other Court of competent jurisdiction in the Province.

5. A preliminary objection has been raised by the learned counsel for the respondent anti is well supported by the cases reported as Khushi Muhammad and 4 others v. The State (1979 S C M R 94), Manzoorul Haq Sajid v. The State (P L D 1979 Lah. 682) and Din Muhammad v. Muhammad Sharif and another (P L D1979 B J). The learned counsel has maintained that section 249-A, Cr. P. C. is an adequate and alternative remedy available to the petitioners and the consistent prac tice of the superior Courts in Pakistan has always been to have the matter adjudicated by the lower Court in the first instance in cases of concurrent jurisdiction. Learned counsel for the respondent refutes the allegations of mater fide and the allegations of personal interest in the trial Court. He does not seriously oppose the transfer of the case to any other Court of competent jurisdiction.

6. Reading the various applications annexed to this petition for quashment, pima facie it appears that both the sides are living on pro6ti tution. In view of my impressions noted above, from the bare reading of the first information report and the fact of the issuance of process against all the three petitioners, including the two ladies, I deem it appropriate to exercise jurisdiction under section 526 of the Code of Criminal Pro cedure, and direct to transfer this case to the Court of Assistant Commis sioner, Sahiwal where the parties shall appear on the 30th May, 1979. I have transferred it to a Court at Sahiwal, which is conveniently acces sible by frequently available public transport.

Regarding the apprehension of risk of life, if the circumstances so warrant, the-petitioners may apply to the learned trial Court for exemp tion from personal appearance.

The case-law relied upon by the learned counsel for the respondent in the preliminary objection is applicable to the facts of the case and I am of the view that the petitioners, if so advised, should in the fist instance make an application under section 249-A of the Code of Criminal Procedure to the learned trial Court, which will be good enough to decide the same in the first instance.

The aforesaid order is without prejudice to the merits of the case. Criminal Miscellaneous application stands disposed of accordingly.

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