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Criminal Miscellaneous No. 641 of 1975, decided on 1stNovember, 1977.
---- S. 423-Deed containing false statement-Section 423, held, covers cases of dishonest or fraudulent execution of deed of transfer containing false statements etc. but does not cover case of execution of general power of attorney.
B. M. Bangash for Applicant.
Habibur Rashid for the State.
S. A. Hasan for Respondent No. 2.
Date of hearing: 1st November, 1977.
This is a petition under section 561-A, Cr. P. C. for quashment of a criminal case under S. 423, P. P. C. started on a direct complaint by respondent No. 2 in the Court of A. C. M. XVI, Karachi.
2. The facts in brief are that respondent No. 2 Sikandar Hussain is the son-in-law of petitioners Muhammad Yusus Mirza and his wife Nazir Begum. Sikandar Hussain was married to their daughter Mst. Asfa. They had three children. On account of some dispute Mst. Asfa went and resided with her parents. One of the 3 children in custody of father Sikandar Hussain died after a short illness. Sikandar Hussain divorced his wife Asfa and his wife in turn filed suits for her dower and guardian ship of children. This litigation was going on between the parties when the present direct complaint was filed before the A. C. M.
3. The allegations in the complaint are that the petitioners who were the father-in-law and mother-in-law of the complainant had executed a power-of-attorney in favour of the complainant and his wife Mst. Asfa for sale of their house concealing the fact that house had been mortgaged with House Building Finance Corporation for the loan taken for its construction. The learned Magistrate issued process for an offence under section 423, P. P. C. against the petitioners.
4. Mr. B M. Bangash on behalf of the petitioners has pointed out that there was no cheating in respect of the power-of-attorney executed by the petitioners in favour of their son-in-law and the daughter. That the fact of the house being mortgaged with House Building Finance Corporation was known to Sikandar who was a family member and three loan instalments were even deposited in the National Bank of Pakistan by Sikandar under his own signatures. These receipts have been filed as Annexures B, C and D.
5. By executing a general power-of attorney in favour of the son-in- law and the daughter the petitioners have apparently committed hardly any criminal offence. Section 423 is in respect of dishonest or fraudulent execution of deed of transfer containing false statements, etc. General Power of Attorney is not a deed of transfer. In any case it is not shown that it contains any false statement and was executed dishonestly. Thus no criminal offence is made out even on the face of the complaint. This complaint appears to have been filed as a counterblast as the wife of the complainant had started civil litigation for recovery of her dower and for obtaining custody of her children. The proceedings are thus an abuse of the process of Court and they are, hereby quashed.
Application allowed.
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