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Criminal Miscellaneous No. 450 of 1974, decided on 28th April 1977

‑ S. 561‑A‑Quashment of proceedings‑Direct complaint filed under S. 420, P. P. C. alleging misappropriation of money given to petitioner for being delivered to complainant's father at J‑Family feud and litigation between parties having a long history and at present a civil suit pending against maternal father of complainant Proceeding initiated for ulterior motives, hence quashed, in circum stances.‑[Quashment of proceedings.

S. Nasiruddin for Applicants:

Manzoor Hussain for Respondent No. 1.

Nooruddin Sarki for the State.

Date of hearing: 28th April 1977.

This is a petition under section 561‑A, Cr. P. C. for quashment of the proceedings of a criminal case started on a direct complaint for offence under section 420, P. P. C.

2. The facts in brief are that respondent No. I Muhammad Safdar filed a direct complaint against the two petitioners Muhammad Hussain and Muhammad Shafi residents of District Jhelum in the Punjab in the Court of Additional City Magistrate, Landhi, Karachi alleging that 3 months prior to the filing of the complaint, the two accused/petitioners visited the complainant's house at Karachi. The complainant gave Rs. 900 to the petitioners for being delivered to his father at Jhelum. But the amount was not actually received by the father of the complainant and had, therefore, been misappropriated. The learned Magistrate after recording the statements of the complainant under section 200 and of two witnesses Muhammad Farooq and Ali Shah under section 202, Cr. P. C. ordered issue of bail able warrants against the accused for offence under section 420, P. P. C.

3. It has been pointed out by Mr. Nasiruddin on behalf of the peti tioners that the parties belong to the same village in district Jhelum and there is old enmity or a family feud existing between them. That there has been a long history of previous litigation between the parties. That one complaint at Jhelum and two at Karachi had already been filed by the respondent or his family members and in the similar complaint filed at Karachi the allega tions were that Rs. 500 had been obtained from Raja Haq Nawaz at Karachi for payment to his father at Jhelum and the same had been misappropriated. The case under reference was quashed by the High Court and that the order was upheld, by the Supreme Court. Petitioner No. 1 had filed a civil suit being Civil Suit No. 460/73 at Jhelum against the maternal grand‑father of respondent Muhammad Safdar. This suit was filed on 10‑12‑1973 at Jhelum while the present private complaint was filed 3 months thereafter on 13‑3‑1974 at Karachi. Mr. Nasiruddin on behalf of the petitioners has therefore, argued that the complaint in question is entirely false and mala fide and it has been filed with intent to drag the accused/petitioners in the city Courts in the Karachi all the way from Jhelum as a counterblast for filing the civil suit.

4. Mere perusal of this complaint would show that it is one of the stereotype complaints used for filing false cases against persons residing in distant places. When there is recorded enmity between the parties, how would the complainant entrust Rs. 900 to the petitioners at Karachi for payment to his father at Jhelum, and how would that constitute an offence of cheating under section 420, P. P. C.

5. Mr. Manzoor Hussain on behalf of respondent No. 1 has merely stated that the petitioners ought to have moved the Sessions Court in the first instance; but the present petition is one under section 561‑A, which could not have been filed in the Sessions Court. He has then stated that the trial Court could also come to the rescue of the petitioners by discharging them and when there is another remedy the inherent powers of the High Court cannot be invoked. This is, however a clear instance of abuse of process of the Court and if a case like the present one is allowed to be con tinued in the Court of the A. C. M., Karachi the result will be undue harass ment of the petitioners who would be required to come all the way from Jhelum to attend each hearing of the case which would never proceed.

6. Mr. Nooruddin Sarki on behalf of the State has expressed that the complaint is false on the face of it and it has been filed for ulterior motives.

7. In the result the petition is accepted and the proceedings of Criminal Case No. 200/74 in the Court of A. C. M. No. XV, Landhi. Karachi under section 420, P. P. C. are hereby quashed.

Proceedings quashed.

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