MAZHAR IQBAL SIDHU, J.---Aftab Alam and Muhammad Tanvir have sought termination of proceedings pending before the learned Magistrate against them through this application under section 561-A, Cr.P.C. In a case registered vide F.I.R. No,111 dated 30-1-2009 at Police Station Shalimar, Lahore under section 406, P.P.C. On the complaint of Muhammad Munir which is pending before the learned Magistrate 1st Class, Cantt., at Lahore.
2. Briefly the prosecution case is that 7/8 years earlier to the registration of case the complainant and the petitioners run a joint business with the name and design Pasha Rent a Bike and Car, 131 Shahi Road Baghbanpura, Lahore. The complainant. Received six vehicles from the petitioners on mortgage. Detail of the same has been mentioned in the F.I.R. Total amount of the said vehicle was Rs,16,50,000/- and the same amount was paid to the petitioners. Thereafter the petitioners obtained four vehicles from the complainant on rental basis but neither the vehicles were returned nor the rent was paid to the complainant so far and the estimated amount of Rs,16,20,000/- of the complainant has been misappropriated by the petitioners.
3. After the registration of the case investigation was concluded resulted in preparation of report under section 173, Cr.P.C. Vide dated 19-3-2009 and then the same was submitted to the Court. The petitioners filed application under section 249-A, Cr.P.C. Which was dismissed by the learned Magistrate 1st Class, Lahore vide order dated 15-6-2012 and criminal revision_ filed by the petitioners against the said order has also been dismissed by the learned Addl: Sessions Judge vide order dated 22-11-2012. Hence the instant application.
4. Learned counsel for the petitioner contends that since the framing of charge by the learned trial court up till now the complainant has failed to adduce any evidence against the petitioners; prima facie the contents of the F.I.R. Show a case of civil nature to which the complainant Muhammad Munir has made a shape of criminal case with ulterior motive; he has left the country for Abu Dabi and the learned trial court has made hectic efforts up to the use of coercive, measures for procuring the attendance of the P.Ws for their statements but without any out come. Learned counsel for the petitioner has further argued that to continue the proceedings in the said case is a sheer an abuse of process of law and wastage of precious time of the learned trial court; un- limited time cannot be appreciated to be granted to the prosecution for adducing its evidence; the complainant is not in the country; learned trial court has adopted coercive measures available in the Code of Criminal Procedure 1898 but the P.Ws have not entered appearance and in this way no possibility exists of the petitioners being convicted in the case, therefore, by accepting the instant application orders of the learned trial court passed under section 249-A, Cr.P.C. On 15-6-2012 as well as order of the learned revisional court dated 22-11-2012 may be set-aside and the proceedings pending before the learned trial court may kindly be terminated/quashed. Learned counsel has relied upon the following judgments:
(i) 1970 PCr.LJ 649 (The State v. Jagmal Singh alias Madhu Singh and 4 others)
(ii) 1998 SCM R 466 (S. Iftikhar Hussain Shah v. S. Sabir Hussain Shah and 2 others)
(iii) 1995 M LD 563 (S. Sabir Hussain Shah and another v. S. Iftikhar Hussain Shah and another)
(iv) 2004 SD 1060 (Manzoor Ahmed and another v. The State )
(v) 2012 PCr.LJ 999 (Abdul Razak Gabole and 2 others v. The State).
5. Learned D.P.G has not appreciated languidness of the prosecution towards recording its evidence. Learned counsel for the respondent/complainant has opposed the submissions and submitted that the complainant is ready to adduce his evidence, and short time may be given for the same; colossal monetary loss has been caused to the complainant by the petitioners and fiduciary relations have been broken; every prospect exists of the proof of the case provided a reasonable time is afforded to the prosecution for the examination of its P.Ws and thus prayed for the dismissal of instant application.
6. Arguments heard. Record has been gone through.
7. The incident allegedly took place in 2006 whereas the case was reported on 31-1-2009. Report under section 173, Cr.P.C. Was prepared on 19-3-2009, the same reveals that partway investigation compromise was effected between the parties and pre-hrrest bail of the petitioners was allowed by the learned Addl: Sessions Judge, Lahore. After the submission of challan before the learned trial court for the first time on 17-6-2009 petitioners appeared before the Court and for the supply of copies of the documents of the P.Ws. Under section 241-A, Cr.P.C. Proceedings were adjourned for 24-6-2009 when copies were delivered and thereafter on 24-6-2009 both the petitioners were indicted on 26-6-2009 to which they pleaded non calpabis then incessantly the prosecution evidence was called. On 29-2-2012 statement of formal witness Muhammad Afzal, S.I was recorded before whom an application Exh.PA was produced for the registration of the case and by making endorsement on it through Muhammad Shahid constable No,15226-C sent it to Lahore for the formal registration of the case. Learned trial court issued non-bailable warrants of arrest of the P.Ws. But no body entered appearance. On 4-12-2012 process server reported that complainant had left the homeland for Abu Dabi and in this way, it is construed that the complainant had lacked interest in the prosecution of the case. Then an application under section 249-A, Cr.P.C. Was submitted by the petitioners for their acquittal, the same was dismissed by the learned trial court and the learned revisional court also upheld the order of dismissal of said application. It is requirement of law that trial of an accused should be concluded within a reasonable time and speedy trial is right of the accused. Both the petitioners remained in dock since 24-62009, but up date neither the complainant nor his private witnesses haw entered appearance and in this way, more than three years have been taken by the prosecution for recording its evidence which has badly failed to do so. It is well saying of law that "justice delayed is justice denied" Section 344, Cr.P.C. Binds the Court that without any reasonable cause proceedings in the trial may not be postponed. Law on the point is very much established as has been laid down in case titled The State v. Jagmal Singh alias Madhu Singh and 4 others (1970 PCr.LJ 649) and in head note B it has been observed as follows: "(b) Criminal . Procedure Code (V of 1898), S.344---Accused's right to speedy trial---Court not justified in granting adjournments in prosecution indefinitely---Prosecution failing to produce witnesses despite more than a dozen opportunities in course of one and half years---Court, held, fully justified in closing case for prosecution in circumstances."
It has been further held in Abdul Razak Gabole and 2 others v. The State (2012 PCr.LJ 999) as follows:-- "(a) Criminal Procedure Code (V of 1898)--- ' Ss.249-A & 265-K-Acquittal of accused-Considerations-While deciding application under S.249-A, Cr.P.C. For acquittal, the court had to consider two crucial points, whether the charge was groundless or whether there was no probability of accused being convicted of any offence--- Provision of S.249-A, Cr.P.C. Had given right to accused to move application for his acquittal at any stage of the proceedings, which could be even prior to framing of charge or recording of evidence, or at any subsequent stage; and there was no bar imposed by law conditional to stage of proceedings---Court, in case of dismissal of application moved under S.249-A, Cr.P.C. Should discuss the entire material available on record with probable cause on the basis of which reasonable grounds appeared to continue the trial-By enacting Ss.249-A and 265-K, Cr.P.C, the Legislature in its wisdom did not leave the question of recording evidence as condition before taking action under either of the provisions; and the use of expression at any stage of the case was indicative enough of the intention ,that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be a later stage as well---Section 249-A, Cr.P.C. Empowered the Presiding Officer of the court to acquit accused at any stage of the trial; and only requirement to be fulfilled, firstly was that hearing was to be given to the prosecutor and counsel of accused; and secondly, reasons to be recorded in support of conclusion that the charge was groundless; or that no probability was of accused being convicted."
8. After considering the case by all its pros and cons the tout-ensemble of the same is that to continue the proceedings any more in the main case against the petitioners before the learned trial court would amount to abuse of process of law and wastage of precious judicial time as in the.
Circumstances no probability exists for the conviction of the petitioners under the charge on account of want of its proof. Therefore, the instant application under section 561-A, Cr.P.C. Is accepted. Order passed by the learned trial court under section 249-A, Cr.P.C. Dated 15-6-2012 and the order passed by the learned revisional court dated 22-11-2012 are hereby set aside and the proceedings before the learned trial court in case registered vide F.I.R. No, 111 dated 30-9-2009 under section 406, P.P.C. At Police Station Shalimar District Lahore on the complaint of Muhammad Munir respondent No,2 are hereby terminated and quashed.