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Criminal References Nos. 5549 of 1969 and 51, of 1970, decided on 5th November 1970.

S. 561‑A‑Quashment of proceedings‑Civil dispute‑Two criminal cases on charges of false personation and cheating based on same facts instituted in two different Courts‑Transaction not involving any false persona tion or cheating and found to be of civil nature‑Proceedings in both cases quashed‑Penal Code (XLV of 1860), Ss. 419, 420 & 408.

Nooruddin Sarki, for A.‑G. for the State.

Muhammad Hussain Adil for Respondents Nos. l to 4.

Respondent No. 5 in persons.

Date of hearing: 5th November 1970.

These are the two references to quash the proceedings pend ing in the lower Courts. The first reference was made by the Additional Sessions Judge, Hyderabad to quash the pro ceedings pending under section 408, P. P. C. in the Court of the Civil Judge and A. C. M'. Hyderabad against four persons, namely, Mumtaz, Fakir Muhammad, Farid Ahmed and Abdul Majid, while the second reference was made by the learned Sessions Judge, Hyderabad to quash the proceedings under section 419, P. P. C. pending in the Court of S. D. M. Hydera bad against Mumtaz. These references arise out of two different complaints filed by Ali Qasim in different, Courts on the same allegations and the process was issued by those Courts:

Ali Qasim claims to be the uncle of Gul Hassan who died due to injuries as a result of the firing which had taken place at Karachi on 28th December 1962. It was contended by Ali Qasim that Gul Hassan owned 0‑8‑0 share in Qaiser Cinema and was also the owner of a house bearing city survey No. 869 situated in Ward F. Hyderabad. The other 0‑8‑0 share of the cinema was owned by some lady. It was further conten ded that Mumtaz Ali was the manager and servant of Gul Hassan and in that capacity he used to collect the income and profit of the share of Gul Hassan and handed over the same to the deceased; while Fakir Muhammad was the manager at Qaiser Cinema. So Farid Ahmad and Abdul Majid were concerned they were hunchmen and associates of Mumtaz Ali. All the four persons entered into a criminal conspiracy and in pursuance of that conspiracy Mumtaz Ali sent a letter under his signature to the Manager Bank of Bahawalpur, Hydera bad on 28th June 1964 claiming himself to be the only legitimate heir of the deceased. It was further pleaded that those persons recovered the share of the income from the cinema and misappropriated the same although they were required to hand over the money to him as he was the uncle of the deceased and inherited his property. Consequently criminal breach of trust was committed by those four persons and further Mumtaz Ali had falsely personated. Allegations of cheat ing were also made against them.

On the basis of these allegations Ali Qasim filed a complaint under sections 408, 419 and 420, P. P. C. read with section 109, P. P. C. in the Court of the Additional District Magistrate, Hyderabad on 6‑8‑68 and it was transferred to the Civil Judge and A. C. M., Hyderabad for disposal according to law. The learned Magistrate on receipt of the complaint recorded the state ment of the complainant and also held the preliminary inquiry in which four persons Muhammad Rawal, Muhammad Ismail, Muhammad Salim Manager Bank of Bahawalpur and Abdul Hamid were examined. After holding the inquiry the learned Magistrate was of the view that an offence under section 408; P. P. C. seemed to have been committed and, therefore, he issued bailable warrants against all the four persons on 27‑1‑69. Aggrieved by this a revision application was filed in the Sessions Court, Hyderabad on 28th January 1968 and, thereafter, reference was made by the learned Additional Sessions Judge on 6‑8‑69 to quash the proceedings.

So far the other case is concerned Ali Qasim approached the Martial Law Authorities and he made a complaint in writing which was forwarded to the Deputy Commissioner who sent it to the City Magistrate, Hyderabad, for taking appropriate action. After recording the statement of the complainant he held an inquiry in which he examined Salim Ashraf, Kamaldin, Shaukat Hussain and Abdul Hamid. On the basis of this inquiry he was of the view that offence under section' 419 was committed and, therefore, bailable warrants were issued against Mumtaz Ali on 17‑11‑69. Aggrieved by this a revision appli cation was filed in the Sessions Court on 28‑11‑69 and the reference was made by the learned Sessions Judge by his order dated 12‑3‑1970:

As has been stated earlier the allegations in both the complaints were similar and in spite of the reference having been made by the learned Additional Sessions Judge in the first case to this Court for quashment of the proceedings the learned S. D. M., Hyderabad issued the process. It was found by the learned Additional Sessions Judge that there was a dispute bet ween the parties over the property left by the deceased and legal heirship which could only be resolved by the civil Court. He was further of the view that the evidence which was pro duced in the preliminary inquiry did not disclose any criminal offence having been committed. The learned Sessions Judge referred to the order of the learned Additional Sessions Judge and pointed out that in view of the reference having been already made to the High Court for the quashment of the proceedings, which was still pending, the learned S. D. M. clearly erred in issuing process on the same allegations which had been made in the earlier complaint and, therefore, the issuance of the process was illegal and abuse of Judicial powers.

In this Court, Ali Qasim appeared in person and argued the matter. The State was represented by Mr. Nuruddin while Mumtaz Ali and others were represented by Mr. Muhammad Hussain Adil. I have gone through the statements of witnesses recorded in both the cases and I agree with the learned Additional Sessions Judge that no criminal offence was committed and it was a dispute of civil nature. Ali Qasim claimed himself to be the uncle and sole heir of Gul Hassan although admittedly the mother of the deceased was alive at the time when Gul Hassan died. So Ali Qasim alone could not be legal heir even if he was the uncle of the deceased which fact he has yet to establish and there is no evidence on record to establish that fact. Moreover, the evidence disclosed that whatever amount was realised from the cinema as share of the deceased was delivered to the mother of the deceased. Moreover, the deceased was not the owner of the cinema but he had taken 8 share of lease from one Akhund Abdul Latif. The lease was said to be on yearly basis and after the death of Gul Hassan and the expiry of the period of lease there could be no subsisting lease in favour of Gul Hassan. So far the personation is concerned Mumtaz Ali did not gain anything thereby as Gul Hassan had to pay large sum of money to the bank and Mumtaz Ali agreed to discharge those dues. So, on the contrary, Mumtaz Ali incurred a liability and there was no question of any false personation on or cheating involved in it.

In the circumstances the reference are accepted and the proceedings in both the cases pending in the Courts of the Magistrates are quashed.

Reference accepted.

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