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Criminal Miscellaneous Application No. 90 of 1966, decided on 15th August 1967.

S. 561‑A‑Complaint under S. 420, P. P. C. filed against petitioner as a result of long litigation between complainant and petitioner‑Complaint found do be frivolous and mala fide‑Proceedings quashed.

Ramchand for Petitioners.

A. Karim Lakhan for A. A.‑G. for the State.

Respondent No. 2 in person.

Date of hearing: 7th August 1967.

Present application ha: been filed by the four petitioners to f quash the proceedings under section 561‑A, Cr. P. C., in the complaint (Annexure B‑1 page 167) filed by opponent No. 2 (Abdul Qaddus Bihari) under section 420, P. P. C. This prayer is vehemently opposed by both the respondents.

2. In order to appreciate the points involved in this matter brief reference to certain facts appears to be very necessary at this stage. Late Hotumal was father of petitioner No. 1 and brother of the remaining petitioners. He is said to be a Pakistani National and resided at Sinjoro till he died at Bombay in 1963, where he had gone for Cancer operation. All the petitioners have been held to be non‑evacuees and their property has been declared non‑evacuee. The first order passed in this respect is (Annexure B, page 39) dated 17‑4‑1958 by the Assistant Custodian, Evacuee Property, and Nawabshah. It appears that respondent No. 2 was not satisfied with this position and consequently he appealed against this order. During its pendency Martial Law Regulation No. 49 was promulgated. The petitioners took advantage of its benefit in respect of amnesty. They filed affidavit along with late Hotumal. The appeal filed by respondent No. 2 against the order dated 17‑4‑58 by the Assistant Custodian Nawabshah was dismissed by the Additional Custodian (Judicial), East Pakistan, Hyderabad Khairpur Division by his order dated 4‑6‑59 (Annexure I, page 67). Thereafter the petitioners and I Hotumal received a notice from Deputy Commissioner and D. R. C., Sanghar (vide Annexure J, page 91 of April 1960). By this notice they were required to show cause why they should not be prosecuted under M. L. R. No. 49. The learned counsel for the petitioners had brought to my notice that they had filed a writ petition and thereafter this notice was withdrawn (vide Annexures A, L, M, N‑pages 93‑99). It was further urged before me that the petitioners had no rest or peace as their properties and that of Hotumal were put up for allotment in 1962. Their writ petitions (Nos. 105‑107 of 1961) were dismissed as it was held that all these writ petitions were pre mature (vide Annexure 'O' 1010 dated 23‑1‑63). My attention was drawn to the observations made in paragraph 4 of this order. Hotumal who had proceeded to Bombay for Cancer operation had died on 2‑6‑63. 'Will' made by him on 14‑2‑63 is Annexure 'Q'‑page 115. On the basis of this 'will' mutations were made in the record of rights in respect of agricultural land left by him. Respondent No. 2 felt aggrieved and consequently filed an appeal. It has now been dismissed by the Deputy Collector, Shahdadpur by his order dated 1‑6‑67 and its certified copy was produced at the time of arguments. It was further brought to my notice that in spite of this 'will' made by Hotumal his property as well as of the present four petitioners was allotted in 1963 and writ petition filed by them (No. 803163) is still pending in this Court. It appears that the respondent No. 2 was still not satisfied and consequently he filed the complaint in the Court of City Magistrate, Hyderabad, against the petitioners on 30‑7‑64. Revision petition filed against it was allowed by this Court and decision is reported in P L D 19611 Kar. 207. Respon dent No. 2 again felt aggrieved and approached the Additional Custodian (Judicial), East Pakistan, Karachi, by filing the Miscellaneous Application on 10‑2‑65. It was disposed of by him on 13‑2‑65 (Annexure 'V', page 127). The relevant portion in this order appears to be relevant and is reproduced below:‑

"Consequently the Deputy Rehabilitation Commissioner concerned be requested to take necessary action, so that the evacuee interest in the property involved in the said cases may De safeguarded and necessary action be taken for its disposal. Attested copies of the judgment and the 4 affidavits pertaining to these cases also be sent for proper action under intimation to this office."

Mr. Ramchand, the learned counsel for the petitioners had brought to my notice that the appeal filed by the petitioners is still pending. This order of the Additional Custodian has been suspended by the Custodian, Evacuee Property, West Pakistan, Karachi, by his order dated 31‑5‑65 (vide page 143). Thereafter respondent No. 2 filed complaint against the petitioner in the Court of Civil Judge and F. C. M. Sanghar on 7‑5‑66 (vide Annexure B‑1 page 167). Allegation made by him against the petitioners are

(1) That they have migrated to India and have permanently settled at Jodhpur.

(2) That they have damaged the entire crop of the land, which has been allotted as mentioned above.

(3) That after the death of Hotumal a forged 'will' was prepared and mutation has been made on its basis.

When he was examined under section 210, Cr. P. C. on 15‑6‑66, he added one more allegation by stating that the petitioners have been sending money to India (vide page 173).

3. Mr. Ramchand the learned counsel for the petitioners had urged before me that so far sending of money out of Pakistan to Bharat is concerned this offence is punishable under the provisions of the Foreign Exchange Regulations Act. According to him there is special tribunal with regard to trial of offences under that Act and secondly no complaint can be entertained by a private person. According to him the applications made in the complaint cannot matte out an offence under section 420, P. P. C. and I have agreed with him in that respect. Section 31 of the Pakistan Administration of Evacuee Property Act, 1957, punishes a person for causing damage to Evacuee property. Complaint of respondent No. 2 recites that the petitioners have damaged the entire crops of the allotted land. Section 39 of this Act deals with cognizance of offences punishable under this Act. It clearly lays down "that no Court can take cognizance except on a report in writing of the facts constituting such offence made with the previous sanction of the prescribed custodian." By no strech of imagination the allegations made by respondent No. 2 in his complaint would make out a complaint punishable under section 420, P. P. C. Apparently he has filed his complaint under section 420, P. P. C. in order to escape or avoid the provisions of section 39 of the Act of 1957. Mr. Ramchand had further urged before me that the petitioners had already filed their affidavits in order to have the benefit arising under, M. L. R. No. 49. With regard to the 'will' he had relied upon clause (c) of section 195, Cr. P. C. and had urged before me that no complaint has been filed by the Revenue Authorities who on the basis of this will' have made mutations in the record of, rights, Lastly it was urged before me that respondent No. 2 has filed this complaint with mala fide intention. It is evident from the fact stated above that long litigation has been started by respondent No. 2 against the present petitioners. Whenever any order was passed by any authority and which resulted in favour of the petitioners he approached other authorities. As a result of all this discussion and for the reasons stated above I allow this application and quash the proceedings against the petitioner instituted against them by respondent No. 2 in his complaint under section 420, P. P. C in the Court of Civil Judge and F. C. M., Sanghar.

Petition allowed.

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