1. ' The applicant has moved this application under section 561-A, Cr.P.C. For the quashment of proceedings pending in the Court of A.C.M. XV South Karachi. The applicant was charge-sheeted under section 408/406/420, P.P.C. And he is facing trial for the said charges in the said Court.
2. The prosecution case in brief is that the applicant was employee of Messrs Habib Sugar Mills Karachi and was deputed to Shandadpur in the month of August, 1984, for the purpose of dismantling Mohammadi Cotton Factory, a sister concern of Habib Sugar Mills. It is alleged that the accused collected the said price of machinery plot of land and " scrap etc. From the buyers and he deposited the same in the personal bank account at Shandadpur in the Allied Bank Ltd. It is alleged that instead of sending the same in Karachi, misappropriated the same to the tune of Rs, 5,25,000. F.I.R. Was registered on 26-3-1985.
3. Learned counsel for the applicant sought the quashment on the legal ground. It is contended that income derived from the property alleged to be an entrustment to the applicant was deposited in th bank at Shandadpur and from that bank at Shandadpur the money wa taken out by the accused at Shandadpur and misappropriated. Hence in view of section 1778 Cr.P.C. The only Court which has jurisdiction is the Court of Shadadpur and not the Court at Karachi. It is, therefore, contended that the proceedings pending against the applicant in the trial Court be quashed.
4. In order to appreciate the contention it is necessary to refer to the relevant provisions of the Code of Criminal Procedure.
2. ' Under section 177, Cr.P.C. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
3. ' According to section 179 when a person is accused of the commission of any offence by reason of anything which has been done, any of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
4. ' Under section 181(2) the offence of criminal misappropriation or of criminal breach of trust may be enquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or rftained by the accused person, or the offence was committed.
5. ' Learned counsel in view of the above facts has submitted that as the offence has been committed at Shandadpur, therefore, the complaint should have been registered at Shandadpur.
6. He has referred to the case of Altaf Hussain v . State PLD 1970 Lah. 436 wherein it has been observed that plain reading of section 179 makes it abundantly clear that the commission of an offence should be the result of the cumulative effect of anything which has been done and of any consequence which has ensued therefrom. The moment the petitioner had decided, if at all, to misappropriate the sums after their realisation and not to remit them the offence under section 406, P.P.C. Was complete. The. Petition was accepted. He has referred to the case of Mtikhi Tirathdas v. Jethanand Matvalomal and another reported in AIR 1937 $ind 68 wherein it has been observed that ordinary grammatical meaning of the word 'consequence' construing section 179 as a. Whole is a consequence which is a necessary ingredient of an offence. Loss is not in itself a necessary ingredient of an offence of criminal breach of trust. Therefore, if money agreed to be sent to Sukkur is dishonestly misappropriated at Lucknow and is not sent to Sukkur it cannot be said that it was dishonestly misappropriated or converted at Sukkur.
7. ' The next case cited is the case of Kashi Ram Mehta v. Emperor reported in AIR 1934 All. 499 wherein it has been observed that section 179 contemplates cases where the act done and the consequence ensuing therefrom together constitute the offence. If the offence is complete in itself by reason of the act having been done Sand the consequence is a mere result of it which was not essential for the completion of the offence then section 179 would not be applicable. It is further observed that where an offence under section 403, 1.P.C. Is complete but actual loss falls or is likely to fall on a person residing at C, the court at C has no jurisdiction to entertain complaint.
8. ' The authorities referred to by, the learned counsel are not applicable to the facts of the present case as the facts are distinguishable. It is alleged by the complainant that the applicant had sold the property and then obtained a bank draft in his own nam from Shadadpur and then opened his own account at Frere Road, Karach branch of Allied Bank Ltd. And then in piecemeal he has withdrawn that amount. If the allegation is true then the offence has also bee committed at Karachi and the Court at Karachi has the jurisdiction. Therefore, by reasons of sections 179 and 181(2), Cr.P.C. The Cour at Karachi can try the case and, therefore, the contention of th learned counsel has no force.
5. The learned A.-A.G. Has submitted that as the case has been .Challaned by the police the proceedings cannot be quashed under section 561-A, Cr.P.C. He has referred to section 156(2), Cr.P.C. Which provides that: "No proceedings of a police officer in any case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."
9. ' He, therefore, argued that once the case has been challaned then the proceedings cannot be quashed.
10. ' In the instant case learned counsel for the applicant has himself asserted that he has not moved application on the merits of the case but this application has been moved on legal ground. FrOm the charge sheet prima facie case has been made out therefore, proceedings cannotC be quashed as contended by the learned counsel. He could only pray for the transfer of case from one Court to the other but as the case has been investigated at Karachi and no prejudice would be caused to the accused/applicant, therefore, the transfer of case from Karachi to Shadadpur, to my mind, is not warranted on facts- or law. Learned counsel submitted that material witnesses are to be brought from Shadadpur. Learned counsel appearing on behalf of the respondent has stated that it is the headache of the prosecution to produce the witnesses. The applicant is himself resident of Karachi and it would be more inconvenient for him to go to Shadadpur to attend the case on each hearing, at the cost of heavy expenses. It appears that this application is motivated in order to delay the proceedings pending against him. Learned counsel for the complainant has state& that counsel for the applicant has moved application before the trial Court that he is making an application for transfer of the case .But instead bf moving such application he has moved application for quashment of the proceedings.
11. ' Learned counsel for the complainant has referred to the case of Ghulam Akbar v. Muhimmad Ilyas and another reported in PLD 1975 Kar. 231 in which it has been observed that inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by, the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. It has been further observed that in the case of a charge-sheet however, although the First Information Report must necessarily be a document which discloses not merely a crime but a cognizable crime it by no means follows that the entire case against the accused persons is that which is contained in the First Information Report, much less does it follow that the only evidence which is available against him is that which is mentioned in the First Information'
12. Report. An investigation has taken place thereafter and it must be, in very rare cases indeed that the Court can come to the conclusion that the prosecution have no evidence which if produced and believed could result in a conviction.
13. ' The facts of the case would show that the complainant has made allegations in his report, the police has investigated the case and charged the accused for offences under. Sections 408/406 etc. Learned counsel for the complainant has stated that the witnesses have attended the Court on two dates of hearing but the witnesses could not be examined due to the conduct of the defence.
14. Another objection has been taken that the applicant had and alternate remedy by way of application under section 249-A,Cr.P.C. But the applicant had not moved any such application.
15. When an alternat - remedy is available the inherent powers of the Court under section 561-A, Cr.P.C. Can only be used in exceptional cases but the applleant has not availed of that remedy.
16. ' Reliance has been placed on the cases reported in PLD 1981 SC 608 AND 1982 SC M 101. These authorities support the contention of the learned counsel for the complainant. From whatever aspect we consider this case the applicant has nct been able to make out case either for quashment of the proceedings or transfer of the case from Karachi to Shadadpur. The application is dismissed.
17. Dismissed.