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Criminal Revision No. 142 of 1967, decided on 4th December 1967.

S. 561‑A‑Abuse of process of Court‑Complaint under, S. 406, P. P. C.‑‑Story put forward by prosecution appearing to be of suspicious character Bogus story made up by complainant and prosecution started at a distance of 400 miles to vindicate some personal grievance against accused‑Held, nothing but mere abuse of process of Court‑ Proceedings quashed.

Mrs. Salima Nasiruddin for Petitioner.

Jamaluddin for Respondents.

Date of hearing : 4th December 1967.

On the 12th of November 1966 a complaint was lodged at the instance of Haji Pathana son of Suleman under section 406, P. P. C. before the Additional District Magistrate, Larkana, against petitioner Haji Bashir and his two sons, Abdul Ghafoor and Lalu, on the allegation that the father and the two sons who were known to the complainant, had come to his village about two and a half months before the institution of the complaint to purchase some cattle and on account of previous acquaintance with the complainant the petitioners stayed with him at his house. According to the complaint the petitioners, who are dealers in cattle trade purchased some buffaloes but they were not able to get the cattle of their own choice so that to book a railway wagon from Kamber Station to Karachi. The complainant, therefore, offered to the petitioners his four buffaloes to be taken to Karachi in order to make it a full wagon load and also gave them a sum of Rs. 100'00 for the booking charges. These, four buffaloes of the complainant had to be delivered to one Qutubuddin a friend of the complainant residing at Karachi.

2. According to the complaint the accused obtained Wagon No. 13077 on the 3rd of September 1966, vide R. R. No. 401490 which was attached with train No. 596 and left Larkana for Karachi on the 4th of September 1966. But on arrival at Karachi the petitioners did not deliver the four buffaloes of the com plainant to his friend Qutuboddin P. W. The complainant was informed of this situation when he reached Karachi 15/20 days after the dispatch of the alleged four buffaloes. The complainant in company of Qutubuddin and one Mashooq P. W. went to the accused who admitted that they had brought four cattle of the complainant as "Amanat" with them to Karachi. Abdul Ghafoor and Lalu accused told them that their maternal uncle (Mamun) had gone to Punjab and, therefore they will deliver those cattle to the complainant after 15 days. It is alleged that the complainant in company of his two friends, Qutubuddin and Mashooq P. Ws., continued visiting the accused for a period of fortnight but the cattle were not returned to him. Ultimately the accused told the complainant that they will not deliver the buffaloes to him and that the complainant should keep his mouth shut. The complainant and his party thereafter returned to their village and lodged this complaint on the 12th of November 1966.

The trial Magistrate did not hold any enquiry into the allegations contained to the complaint, neither he examined the complainant under section 200, Cr. P. C. but referred the complaint for enquiry and report to Police Station Kamber. On receipt of this complaint the Police recorded the F. I. R. under section 406, P. P. C. and after making arrest of the accused have submitted the challan to the trial Magistrate.

4. The proceedings against the petitioners started in the above fashion are challenged by them before this Court under section 561‑A of the Criminal Procedure Code. Learned counsel for the petitioners has urged drat petitioner Haji Bashir is an old man, he alongwith his two sons has been living ail his life in Karachi and has been dragged into this malicious litigation in the far off Courts of Larkana at a distance of 400 miles from Karachi on the interested evidence of the complainant and his friends, who come from the same village as that of the complainant and belong to the same caste. It was further submitted that the railway clerk who was cited as witness has been given up by the complainant and he did not care to produce any document to establish the fact that any wagon was obtained by the petitioners from Railway Station Kamber for the dispatch of buffaloes neither airy witness from Karachi has been produced to support the case of the complainant on the alleged criminal breach of trust.

5. I have heard the learned counsel for the petitioners as well as the learned counsel for the State at some length. It is surprising to note that the learned Magistrate without examining the contents of the complaint and without recording the statement of the complainant under section 200, Cr. P. C. referred the case to the police for enquiry. The Police in turn registered a case under section 406, P. P. C. against the petitioners on the frivolous complaint of Pathana and his friends without there being any proof in writing of the alleged entrustment or any other evidence to the fact that the petitioners were responsible for obtaining the property of the complainant in trust to them at Kamber. Except the oral evidence of Qutubuddin and Mashooq, who are friends, caste‑men and residents of the village of the complainant there is no independent evidence coming forth from Karachi where the alleged criminal breach of trust is stated to have taken place. Even if the statements of the complainant, his partner Qutubuddin and his caste‑anon Mashooq are accepted on their face value one fails to understand why there three persons did not lodge a report at Karachi and waited for a period of two and a half months to lodge a complaint on their return to Larkana. There was nothing to prevent the complainant to have lodged an F. I. R. against the petitioners at Karachi. In these circumstances the entire story put forward by the prosecution appears to be of highly suspicious character. In the absence of any writing to show the alleged entrustment and in the absence of any independent witnesses coming forth to support the case of the complainant from Karachi I am clearly of the view that the prosecution of the petitioners started by Haji Pathana at a distance of 400 miles from Karachi is nothing but a mere abuse of the process of the Court. This bogous story has been put forward by the complainant in order to vindicate some personal grievance. At any rate, if the complainant has any claim against the petitioners he should better enforce his remedy through a civil Court. The present proceedings are apparently vaxacious. The same are hereby quashed.

Petition accepted.

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