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Criminal Miscellaneous Application No. 87 of 1976. decided on 30th January, 1979.

(a) Criminal Procedure Code (V of 1898)-

._-- S. 561-A read with Penal Code (XLV of 1860), S. 424-Quashment of proceedings-Accused admittedly a hart of complainant and only allegation being his refusal to give him share of produce-Held: Not a case of dishonest removal of property within meaning of S. 424, P. P. C.-Matter, held further, related to inter se accounting between Zamindar and hart in regard to produce and as such maintainable before Revenue authorities for recovery of Zamindari share-Proceedings quashed, in circumstances.

(b) Criminal Procedure Code (V of 1898)-

(6. 561-A-Quashment of proceedings-Delay-Some 6J years elapsing and no disposal of complaint-Besides complainant no other witness cited either in original complaint or in statement under S. 200, Cr. P. C.-Such inordinate delay by itself, held, a good ground for quashment of proceedings-Proceedings quashed, in circumstances.(Delay].

Abdul Fatah Memon for Applicant.

Ghulam Ali Agha for the State.

Date of hearing : 30th January 1979.

The present application under section 561-A, Cr. P. C. has been made by Ali Akbar Khan, praying for quashment of criminal proceedings pending against him and one Jan Muhammad in the Court of Sub-Divisional Magistrate, Sabadadkot. I have heard Mr. Abdul Fatah Memon, Advocate for the applicant and Mr, Ghulam Ali Agha, Advocate for the State. The learned State Counsel has supported this application. The complainant/ respondent Habibullah has not appeared nor is he represented.

2. The brief facts of the case are that respondent Habibullah (hereinafter referred to as "the complainant") made an application to the Sub-Divisional Magistrate, Shahdadkot on 14-9-1972, stating that he was attorney of one Ashiq Ali for the purpose of managing agricultural land admeasuring 4 acres in deh Gul Shah, Taluka Miro Khan. The second paragraph of this application which appears to lie the basis of the proceedings that are sought to be quashed reads as follows :

"That hari of that land is Jan Muhammad son of unknown Bhatti who is not only to me. All the produce is taken away by that hart and Akbar son of unknown Jalbandi residing within limits of Town Police Station Larkana in collaboration, forcibly and they do not give me Zamindari share. On the contrary they got ready to fight with me, an aged man. I as a postman cannot face them."

The Sub-Divisional Magistrate recorded the statement of the complainant and such statement was substantially in the same terms as the original application. No witnesses were cited in the application or mentioned in the statement under section 200, Cr. P. C. and it would therefore be fair to assume for the purposes of this case that the complainant had no other witness to examine. The Sub-Divisional Magistrate came to the conclusion that an offence under section 448, P. P. C. had been committed and bailable warrants were issued against the applicant and co-accused Jan Muhammad. The S. H. O. of Mino Khan Police Station was also directed to obtain bonds from the applicant for appearance in the Court, A certified copy of another order passed by the Sub-Divisional-Magistrate, Shahdadkot has also been produced before me to show that on 17-10-1972 an order had been passed indicating that the applicant and Jan Muhammad had committed an offence under section 424, P. P. C. The applicant initially filed a revision application before the Sessions Court, Larkana, seeking relief by way of reference to the High Court for quashment of the proceedings on the complaint. Such revision application was dismissed by the 1st Additional Sessions Judge, Larkana on 9-12-1975. The case is since then pending before the Magistrate and there is nothing before me to indicate if any further proceedings have been taken.

3. On a perusal of the application which is the basis of this case it is clear to me that the allegations fall far short of making out a applicant and co-accused Jan Muhammad had even made up their mind to fight with the complainant in order to defend his rights. Even this allegation is as bald as could be for no particulars in regard to the time, place or the manner of such fight have been disclosed. In fact on the allegation made in the application no offence under section 448, P. P. C. appears to have been committed.

4. The next point for consideration is whether an offence under section 424 has been committed. This section reads as follows :

"Section 424. Whoever dishohestly or fraudulently conceals or removes any property of himself - or any other person, or dishonestly or fraudulently assists in the concealment or removal thereof, or dishonestly releases any demand or claim to which he is entitled, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The ingredients necessary for establishing an offence under section 424, P. P. C. are that there should be dishonest or fraudulent concealment or removal of some property or assistance in such removal or a dishonest. release of any claim or demand to which a person is entitled, with a view to defeat the creditors or other persons entitled to obtain the property. In the present case the co-accused Jan Muhammad is admittedly a hard o the complainant. The only allegation is that this hari was not giving share of produce to the complainant. It is obviously not a case of concealment for if the property were concelled the complainant could not hay made this allegation. It would also not disclose a case of dishonest removal of property within the meaning of section 424, P. P. C because the matte relates to inter se accounting between the Zamindar and the hard in regard to the produce. In fact they become partners in the produce of the Ian such relationship between the Zamindar and a hard cannot be stretched i a manner as to attract the provision of section 424, P. P. C. Additionally

it may be stated that the proceedings before the Revenue authorities for recovery of 2amindari share are maintainable.

5. There is still another aspect of the case which cannot be overlooked. The complaint was filed in September, 1972 and 61 years have elapsed for the disposal of a case of this nature specially when basides the complainant B no other witness has been cited either in the original complaint or in the statement under section 200, Cr. P. C. Such inordinate delay by itself is a good ground for quashment of these proceedings.

6. In the result the proceedings in the case of Habibuallh v. Ali Akbar and another under section 448/424, P. P. C. pending in the Court of Sub-Divisional Magistrate, Shahdadkot, are hereby quashed.

Proceedings quashed.

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