Find a Lawyer

Criminal Miscellaneous Application No. 4 of 1980, decided on 16th September, 1981.

--‑‑S. 561‑A‑Quashment of proceedings‑Except bare word of applicant nothing to establish that criminal proceedings under S. 420, P. P. C. started against him due to some dispute with respondent and even nature of dispute or land over which it existed not specifically mentioned‑Order passed by trial Magistrate not only on complaint but after recording statements of complainant and those of witnesses but certified copies of their statements not provided to enable High Court to come to a proper conclusion as to whether matter was of civil nature or otherwise‑Quashment of proceedings declined, in circumstances.

Raja Haq Nawaz v. Muhammad Afzal and others P L D 1967 S C 354 ref.

Sadikally G. Khoja for Applicants.

Mukhdoom Wali for the State.

Date of hearing : 30th August, 1981.

The petitioners have filed this application under section 56.1‑A, Cr. P. C. for quashment of proceedings under section 420, P. P. C. against them pending in the Court of the City Mukhtiarkar and First Class Magistrate, Hyderabad.

The facts giving rise to the making of this application briefly stated are as under :‑

Yacoob son of Lalu applicant No. 1, who is father of applicant Ghulam has a dispute with one Hamid Khan Doongh over land. The aforesaid Hamid Khan Doong filed two direct complaints against him under section 424, P. P. C. which are pending before Mukhtiarkar and F. C. M. Moro and Sub‑Divisional Magistrate, Moro. It is further the case of the two applicants that the proceedings in the two Courts at Moro were filed in order to bring pressure on them with regard to the dispute over land, civil litigation about which is pending between the parties. It is further their case that by filing direct complaints in different Courts they are being harassed and put to financial losses as these prosecutions are filed at distant places like the instant one at Hyderabad and another also under section 420, P. P. C. Larkana.

I have heard Mr. Sadiqally G. Khoja Advocate for the applicant and Mr. Abdul Wali Makhdoom who appeared on behalf of the Advocate. General, respondents No. 2, who was served with notice, had attended this Court and had applied for adjournment for engaging a counsel. However, he is not represented and has chosen to remain absent.

Mr. Abdul Wali Makbdoom at the very outset has pointed out that the applicants have failed to state as to how respondent 2 has filed number of cases at different places as alleged by them in paragraph 3 of the petition, He has pointed that respondent 2, namely Khuda Bux son of Ahmad Khan is not the complainant in the case against the applicants at Larkana or at Moro. It is, therefore, not apparent as to why it has been asserted that he is responsible for filing different complaints at different places indicated. Even the applicants have not specifically stated as to what the dispute is between them and respondent 2. He has very correctly pointed out that in miscellaneous Applications Nos. 56/81 and 57/81 the complainant was Hamid son of Rahmito Khan with whom, according to applicant Yacoob, he had dispute over Survey No. 485 situated in Deh Khet. The applicants have not been successful to prove as to what dispute, if at all, they have with respondent 2 in the instant case.

Mr. Sadikally G. Khoja, the learned counsel for the applicants has raised two contentions in this case. According to him, the direct complaint filed by Khuda Bux under section 420/403, P. P. C. as drafted, does not disclose the commission of any criminal offence and the dispute, if any, is of a civil nature. He has further contended that the proceedings are an abuse of the process of law as the case is of a routine type apparently made up by hired complainants.

Contention No.1 is of utmost importance inasmuch as quashment proceedings at interlocutory stage are usually not entertained where no evidence has yet been examined or recorded in a case. The learned counsel for the State has referred to the Supreme Court decision in Raja Haq Nawaz v. Muhammad Afzal and others (P L D 1967 SC 354) where it was observed as under :‑

Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions by exercise of an extraordinary power which is given for the dispensation of complete justice in the form provided by law. It is necessary that these cases should be examined further to ensure that the course of even handed justice has not been prejudiced.

He has also referred to the decision of the Supreme Court in Dianchand and others v. The State (( ) S C M R 380). The decision was of petition for Special Leave to Appeal No. K‑67/67 in the case which was initiated on a private complaint under section 380, P. P. C. and the petitioner had applied to the High Court under section 561‑A, Cr. P. C. for quashment of the charge on various grounds to the effect that the prosecution case against him was entirely false. The prayer was refused on the view that it was premature at that stage to make an assessment of the merits in the prosecution case. The application for Special Leave to Appeal was made and the Supreme Court observed that no opinion could be expressed at that stage for determination of the guilt or innocence of the petitioner which would eventually depend on the totality of facts and circumstances revealed during the trial, and further that admittedly such a stage had not yet been reached and, therefore, the High Court had rightly rejected the application for quashment of proceedings.

A perusual of the order of the learned City Mukhtiarkar and F. C. M. Hyderabad with regard to issue of process against the applicants would show that the order was passed not only on the complaint, but also after recording the statements of the complainant and those of the witnesses. It was, therefore for the applicants when approaching this Court for the extraordinary relief sought by them at least to have provided certified copies of the statements enabling this Court to come to a proper conclusion as to whether the matter was of civil nature or there was prima facie case for prosecuting the applicants under section 420, P. P. C. The process was issued against the applicants on 5‑8‑1979 and the present application was filed in this Court on 28‑12‑1980. In the 4J months or more that the proceedings continued before the Court at Hyderabad it may be that some evidence also had been recorded. Nothing has been said about it in the application nor is there any plea raised that the witnesses were not being examined due to some reason or the other.

Reverting to the second contention of the learned counsel for the applicants it may here be stated that mere word of applicant Yacoob that the proceedings have been started against him due to some dispute with respondent 2 over land, as alleged in paragraph 3 of the application cannot be considered sufficient, as even he has not specified the nature of the dispute or the land over which it exists. It may here be stated that in the applications filed on behalf of the same applicant in respect of proceedings at Moro in the Courts of the Magistrates concerned the plea of dispute with Hamid Khan Doongh over a particular survey number had been taken. But as pointed out by the learned counsel for the State in the instant application there is no indication whether the dispute with respondent 2 had any connection with the aforementioned dispute with Hamid Khan Doongh.

The learned counsel for the applicants has indeed stressed the point that the direct complaint is of a nature of civil dispute, if at all, but in view of the fact that the petitioner has not attempted to produce further material, as already pointed out, for consideration by this Court, it would be most improper to pass orders in the exercise of extraordinary powers without there being Any reason for coming to the conclusion that there has beep an abuse of the process of the Court. The application is, therefore, dismissed.

Application dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.