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Criminal Miscellaneous Application No. Q‑13 of 1981, decided on 9th December, 1981.

‑‑ S. 561‑A‑Quashment of proceedings--‑Complaint disclosing prima facie a civil dispute between parties in respect of agreement of sale on account of failure to deliver vacant possession of property in question and complaint filed obviously to pressurize party to transaction---‑Complaint and process issued thereunder, held, amounted to abuse of process of Court, in circumstances‑Proceed ings quashed.‑[Abuse of process of Court].

Khawaja Sharful Islam for ,Petitioner.

M. A. Khalil Siddiqui for Respondent No. 1.

Umer farooq Khan for Respondent No. 2.

Ali Murtaza for the State.

Date of hearing : 9th December, 1981.

The learned Advocate for the Respondent No. 1 has filed the state ment in writing, that he does not oppose the above application, without prejudice to the right of Respondent No. 1 to proceed against Respondents Nos. 2 and 3, before the trial Court and/or to prosecute the present petitioner on account of offence he is alleged to have committed, by producing before A. C. M. Karachi, a., forged sale agreement. The said statement is kept on record.

2. The learned Advocate for the petitioner submitted before me, that the complaint in question does not disclose any criminal offence committed by the present petitioner at all. In this connection, the learned Advocate for the petitioner has taken me through the complaint in question, which is Annexure A'. The learned Advocate for the petitioner, therefore, submitted that initiation of the proceedings against the present petitioner before the trial Court amounted to abuse of the process of the Court and as such the said proceedings against the present applicant is liable to be quashed by this Court under section 561‑A, Cr. P. C. as the learned trial Court has rejected the present petitioner's application under S. 249‑A, Cr. P. C. without any cogent reasons and without applying its mind to the said application.

3. The learned Advocate for the respondent No. 2 stated before me, that the complainant in question was lodged after the lapse of three years from the date of sale agreement in question and the complaint prima facie discloses a civil transaction between the parties, in respect of which respondent No. 1 has already filed a suit for specific performance at Karachi, in the Court of XIXth Civil Judge, being suit No. 204/81. In view of this the learned Advocate for the respondent No. 2 submitted that filing of the complaint and getting the process issued against even this respondent amounted to abuse of the process of the Court.

4. The learned Advocate for the respondent No. 1 in reply to the submission made by the learned Advocate for the respondent No. 2 submitted, that since respondents Nos. 2 aid 3 have not moved applica tion under section 249‑A, Cr. P. C. before the trial Court, the proceedings against them cannot be quashed under section 561‑A, Cr. P. C. in view of 1979 S C M R 94.

5. 1 have carefully considered the above submission made by the learned counsels who are before me and have gone through the copy of the complaint in question Annexure‑A as well as order dated 17th November, 1980 passed by the learned trial Court, on the application of the present applicant under section 249‑A, Cr. P C. In my opinion the Annexure‑A prima facie does not disclose any offence committed by the present applicant, as rightly admitted by the learned Advocate for the respondent No. 1 in his written statement filed today. As far as respon dents Nos. 2 and 3 are concerned, no doubt the allegations of cheating and misappropriation are made by the respondent No. 1 in the said complaint, on account of respondent No. 2 failure to deliver vacant possession of the property in question, which was sold by him to respondent No. 1, vide agreement of sale dated 21st June, 1976. However, it may be noted' that in December, 1977 admittedly respondent No. I realised, that respondent No. 2 was not in position to hand over vacant possession of the property in question as the same was in occupation of the present petitioner, who claimed a sale agreement for purchase of the same with the respondent No. 2 and as such the alleged offence, .if any, of cheating and/or misappropriation committed by respondents Nos. 2 and 3 came to the knowledge of the respondent No. I in December, 1977, but the respondent No. 1 did not file any complaint in respect of this alleged cheating till 22nd January, 1980, by a private complaint Annexure‑A. Therefore, there is admittedly a delay in lodging of this complaint of over 21 years and furthermore there is admittedly a transaction of sale in writing between the respondent No. 1 and respondent No. 2, to which the respondent No. 3 is only a witness being the son of respondent No. 2. It is further alleged by the learned Advocate for the respondent No. 2 that respondent No. 1 has already filed a suit for specific performance of this sale agreement in question in the Court of XIXth Civil Judge, Karachi by suit No. 2046/81 which is pending. To me prima facie it seems that there is a civil dispute between the respondent No. 1 and respondent No. 2 only, in respect of agreement of sale on account of failure of respondent No. 2 to deliver the vacant possession of the property in question. Since respondent No. 1 did not succeed in getting the vacant possession of the property, for which he also filed proceedings at Swat, as per Annexure‑B, which was dismissed, vide Annexure‑C, the respondent No. I filed a private complaint as per Annexure‑A, in order obviously to pressurise the respondents Nos. 2 and 3 by the said complaint, to deliver the vacant possession of the property in question to him. Therefore, in my opinion filing of the complaint in question and getting the process issued thereunder amounted to abuse of the process of the Court. However, a legal objection is taken by the learned Advocate for the respondent No. 1, that proceedings against the respondents Nos. 2 and 3 cannot be quashed, without their first moving trial Court under section 249‑A, Cr. P. C. in view of the judgment of the Hon'ble Supreme Court reported in 1979 S C M R 94. It is true, that in the said judgment of Hon'ble Supreme Court has laid down, that the trial Court should be moved first, as that is a remedy available to the accused persons, before they come to the High Court under section 561‑A, Cr. P. C. But in the present case, I find from the order dated 17th November, 1980 passed by the trial Court, on the application filed by the present applicant under section 249‑A, Cr. P. C. that the learned trial Court is not prepared to consider such application, because according to the learned trial Court, such application is premature, as no evidence has been led in the said matter and learned trial Court is of the opinion, that the accused persons can place the documents, etc. on which they rely for their acquittal, when the evidence is led in the said case, which is pending before it. In view of this observation of the learned trial Court in his order dated 17th November, 1980 if I direct respondents Nos. 2 and 3 to trove the trial Court, with a similar application, as was moved by the present applicant, no useful purpose will be served, as the trial Court by its order dated 17th November, 1980 has already expressed its opinion, in respect of such applications. In view of this, in my opinion, the case reported in 1979 S C M R 94 is distinguishable on the facts and circumstances of the present case, as the learned trial Court has already categorically expressed its opinion in respect of such applications, that may be moved by the respondents Nos. 2 and 3, before recording of any evidence, vide its order dated 17th November, 1980 which has been produced before me today by the learned Advocate for the petitioner, which is on record now. Therefore, in view of the above conclusions and observations made by me, I allow the above application and quash the proceedings pending against the petitioner in the Court of A. C. M. Pakistan Colony, Karachi, in Criminal Case No 33/80 filed by respondent No. 1, against applicant. Since I have become aware of the proceedings pending against respondents Nos. 2 and 3, on the basis of same complaint and since I am of the opinion filing of the complaint in question and getting the 'process issued thereunder amounted to abuse of the process of the said Court, I, in exercise of my powers under section 561‑A, Cr P. C. also quash said proceedings, against respondents Nos. 2 and 3, for the same reasons as given above.

Proceedings quashed.

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