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Criminal Miscellaneous No. 1219 of 1970, heard on 1st June, 1985.

(a) Criminal Procedure Code (V of 1898)--

---S. 561-A--Penal Code (XLV of 1860), S. 408/409--Stay of criminal proceedings--Facts of case revealing involvement of accused 'in process of wrongful gain and wrongful loss--Civil suit for recovery of misappropriated amount though terminated in favour of accused due to its dismissal in default, criminal proceedings not stayed in circumstances.

Mian Munir Ahmad v. State 1985 S C M R 257 and Muhammad Saleem etc. v. 5h. Saleem etc. (Law Notes 1978 Lah. 197) ref.

(b) Criminal Procedure Code (V of 1898)--

---S. 561-A--Penal Code (XLV of 1860), S.408/409--Quashing of proceedings--Transaction could give rise to action under civil as well as criminal law--Distinction between two, narrow and could only be considered and decided by reference to evidence to be adduced in trial Court--Petition dismissed in circumstances.

(c) Criminal Procedure Code (V of 1898)--

---S. 561-A--Quashing of proceedings--Delay--Delay of 15 years, held, hardly relevant for quashing of proceedings in circumstances of case- High Court declined to pre-empt jurisdiction of trial Court and dismissed petition. --[Delay].

Ghulam Muhammad v. Muzammal Khan and 4 others P L D 1967

SC 317 and M.S. Khawaja v. The State P L D 1965 S C 287rel.

M.A. Buttar for Appellant.

Farooq Bedar A.A.-G. for the State.

Masood Javid for the Bank.

Date of hearing: 1st June, 1985.

Petitioner Abdul Aziz has been involved in a case registered against him and others, under the provisions of section 408/409 of P.P.C. Briefly the facts of the case are that the petitioner in league with one N.M. Qureshi, Branch Manager of Muslim Commercial Bank Ltd. at Okara, obtained a loan of Rs.35,000. At one point of time the conduct of the aforesaid bank Manager became subject of scrutiny and investigation. It transpired that by abusing his position and using persons like petitioner money had been advanced as loan on papers. but in fact the money was mis-appropriated by t-he Manager and others. Accordingly after investigation various cases were registered including the subject matter of the present petition.

The bank had also instituted Civil Suit for the recovery of the amount at Okara. Unfortunately, those proceedings terminated in favour of the petitioner, not on merits, but on account of dismissal of the suit in default. The present petition was filed in 1970 and on 15th October, 1970, the petition was admitted and the proceedings against the petitioner in the Criminal Court were stayed.

The present petition alongwith such like other petitions came up for hearing in 1985. It may be stated here that in the meanwhile through Ordinance IX of 1984 Offences in respect of Banks (Special Courts) Ordinance 1984, Special Court was constituted, in which by operation of law such cases stood transferred for trial.

On the previous date of hearing such petitions were withdrawn by the petitioners, but in this case Mr. M.A. Buttar desired to argue it on merits.

I have heard the learned counsel at length. According to the learned counsel, it was a case of Civil liability and therefore, the criminal proceedings in respect thereof cannot proceed. Per se the statement of law. cannot be doubted, but the facts of this case reveal A the involvement of the petitioner in the process of wrongful gain and wrongful loss. The learned counsel for the petitioner in support of this petition cited Mian Munir Ahmad v. State 1985 S C M R 257, Muhammad Saleem etc. v. Sh. Saleem etc. (Law Notes 1978 Lah.,197), I have considered these cases. The reference to these cases was made to establish, that this Court had ample jurisdiction to quash the proceedings pending in the Special Court. In the case reported as Mian Munir Ahmad v. State 1985 S C M R 257. It has also been held that the provisions of section 249-A of the Cr.P.C. and that of 265-K of the same Code are meant to seek redress in such like cases. It is well-established principle of law that a transaction can give rise to and action under Civil as well as Criminal Law. The distinction between the two is narrow, and can only be considered and decided by reference 8 to evidence to be adduced in the Trial Court. In view of the judgment delivered by the Supreme Court of Pakistan, in the case Ghulam Muhammad v. Muzammal Khan and 4 others P L D 1967 S C 317. I cannot pre-empt the jurisdiction of the trial Court. Accordingly, I am not inclined to quash these proceedings. The delay of 15 years in this case is hardly relevant, because as laid down by the Supreme Court of t Pakistan in the case reported as M.S. Khawaja v. The State P L D 1965 S C 287. The delay in Criminal Law does not give rise to equities. In this view of the matter the petition is hereby dismissed.

M. A. K .

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