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Criminal Miscellaneous No. 3330 of 1981, decided on 9th March, 1983.

--- S. 561-A-Penal Code (XLV of 1860), S. 409/420/34-Quashing of proceedings - Shortage of stock - Statement of prosecution witnesses not showing that accused was in any way responsible for custody of stock - Mala fide intention of complainant to gage accused and co-accused appearing due to fact that they were disclosing certain facts detrimental to Company to relevant authorities-Since filing of complaint not a single witness examined by trial Court on account of alleged absconding of two co-accused Continuance of proceedings for years amounting to harassment of accused and his case not separated despite direction from High Court-Accused even prima facie not appearing to be responsible for alleged shortage-Continuance of proceedings against accused not likely to lead to his conviction but amounting to abuse of process of Court-Proceedings quashed.

P L D 1978 Kar. 348 ; 1979 S C M R 94 ; P L D 1967 S C 354 ; 1979 P Cr. L J 54 ; 1980 P Cr. L J 843 ; 1679 S C M R 94 and 1978 S C M R 183 ref.

Rao M. Shakir Naqshbandi for Applicant.

Sagir Hussain Jafri for Respondents Nos. 2 and 3.

Abbas Farooqi for the State.

Dale of hearing : 9th March, 1983.

Applicant abovenamed has filed the above application for quashment of proceedings pending against him in the Court of S. D. M., Nawab Shah, in Complaint No. 55/77, under sections 403, 406, 409 and 420, P.P.C., read with section 34, P. P. C., on the facts and grounds mentioned in the above Petition.

The learned Advocate for the Applicant in support of the above Petition submitted as under: -

(a) That neither complaint in question nor the statements of 3 witnesses recorded to preliminary enquiry disclose any offence alleged to have been committed by the applicant as well as co- accused persons and as such issuance of process by the learned trial Court amounted to abuse of the process of the learned trial Court.

(b) That there was delay in lodging of the private complaint in question of nearly 19 months, which is not at all satisfactorily explained by the complainant.

(c) That the last para. of the complaint clearly discloses mala fide intention on the part of the complainant, for filing of the complaint in question and as such the proceedings are liable to be quashed.

(d) That the complainant has produced no authority .as required by law to file the complaint to question and consequently on this ground alone, the complaint is liable to be quashed as the learned trial Court has assumed jurisdiction in contravention of the law. In support of this contention the learned Advocate for the applicant relied upon case P L D 1978 Kar. 348.

(e) That since this was a private complaint and the learned trial Court has issued the process thereon and since the complaint does not disclose any offence committed by the applicant, and has been filed mala fidely, it was not necessary for the applicant to have moved the learned trial Court, under section 249-A, Cr. P. C., before coming to this Court under section 561-A, Cr. P. C., as the law laid down by the Hon'ble Supreme Court in 1979 Supreme Court Monthly Review page 94, is not at all applicable to the present case.

That the learned Advocate for the complainant on the other hand submitted, that the above petition is not maintainable, as the applicant has not moved the learned trial Court under section 249-A, in accordance with the law laid down by the Hon'ble Supreme Court in 1979 S C M R 94 and on this ground around alone the above petition is liable to be dismissed. In addition to this the learned advocate for the complainant sub mitted, that the complaint prima facie discloses the offences mentioned therein, against the applicant as well as co-accused persons and further delay in disposal of the complaint is due to the fact, that two co-accused persons are still absconding and consequently the learned trial Court may be directed to separate the case of the present applicant and dispose of the same within reasonable time. 16, support of his contentions the learned Advocate for the complainant relied upon cases reported in P L D 1967 S C 354, 1979 P Cr. L J 54, 1980 P Cr. L J 843, 1979 S C M R 94 and 1978 S C M R 183.

The learned Advocate appearing for the State at the outset submitted, that he was supporting the above application for quashment on the following grounds: -

(a) That the allegations made in the complaint, that the applicant and co-accused persons absconded on discovery of alleged shortage on 21st December, 1976 is belied by complainant's own admission, that show-cause notices were duly served on the applicant well as co-accused persons on 21st January, 1977.

(b) That alleged shortage is based on physical check up of the stocks, which according to the complaint was for the first time carried out on 19th December, 1977 and as such the reliance of the complainant, that the shortage was discovered in September, 1976 and as the result thereof applicant and co-accused persons absconded has no basis.

(c) That neither complaint for statements of the witnesses recorded in preliminary enquiry shows, that the applicant and/or co-accused persons were Incharge of the stocks, whether finished or unfinished and further the specific duties of the applicant and/or co-accused persons have not been disclosed in the complaint and/or statements of the witnesses recorded in P. E. so as to prima facie make the applicant and/or co-accused persons, liable for the alleged shortage.

(d) That the last para. of the complaint clearly shows mala fides for filing of complaint in question, after the lapse of 19 months.

(e) That it is clear from the diary sheet of the learned trial Court, that complainant did not appear before the learned trial Court on over 14 hearings, but the applicant has been harassed and made to appear all along.

(f) That the evidence on which the complainant relies, as evident from the complaint in question is such, that it cannot lead to the conviction of the applicant and as such continuance of the pro ceedings at least against the applicant, who has been regularly attending the said proceedings would amount to abuse of the process of the learned trial Court.

(g) That the law laid down by the Hon'ble Supreme Court in 1979 S C M R page 94, is not applicable to the facts of the present case and as such non-filing of the application under section 249-A, Cr. P. C., by the applicant, does not make the above, petition non. maintainable.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the private complaint in question as well as the statements of the prosecution witnesses recorded in preliminary enquiry as well as through the cases cited by the learned Advocates before me. It is an admitted position, according to the complaint in question, that alleged shortage had taken place in September, 1976, but in fact, the physical checking of the stocks took place for the first time on 19th September, 1976 but still the allegations have been made in the complaint, that the shortage was discovered in September, 1976, for which no bases at all are available. It may further be noted, that the private complaint in question was filed for the first time on 26^th December, 1977 after the lapse of over 12 moths for which no plausable and satisfactory explanation has been given by the complainant. According to the complaint in question applicant Mirza Jalil Ahmad was Plant Incharge, which obviously means responsible for running of plant in question and there is nothing in the complaint to show; how he was responsible for the safe custody of the stocks, whether finished or un finished. Even the statement of the prosecution witnesses recorded in the P. E. does not disclose anything to suggest, that the applicant was in any way responsible for custody of the stocks in question. From the list of the witnesses, as given in the complaint, the delivery officer of the Company was one Mr. Qadir Asif. It is also clear from para. 12 of the complaint in question, that the complaint in question was filed on account of the alleged compaign of harassment and blackmailing started by the applicant and co-accused persons, on account of the certain applications made to the authorities. This clearly shows the mala fide intention of the complainant to gage the applicant and co- accused persons, as they were disclosing certain facts, detrimental to the Company to the relevant authorities. It may further be noted, that right since filing of complaint (end of 1977), not a single witness has so far been examined by the learned trial Court, of course on the ground that two co-accused persons are alleged to be absconding. All the same, continuance of these proceedings for all these years amount to harassment of the applicant, as his case could have been separated, atleast after the directions given to the learned trial Court to dispose of the complaint in question within 4 months, vide Order, dated 2nd September, 1979 of this Court, in Cr. Miscellaneous Application No. 105/78.

In view of my above conclusions and observations, I am of the opinion, that the complaint in question was filed mala fidely to gage the applicant and co-accused persons and to stop them from making disclosure of certain acts detrimental to the Company, to the appropriate authorities which is evident from para. 12 of the complaint, which was filed after the lapse of 12 months of the alleged shortage. The allegations made in the complaint that applicant and co-accused persons absconded after the alleged discovery of shortage in September, 1976 prima facie seems to be false, as show-cause notices issued by the Company to the applicant and co-accused persons were duly served and replied by the applicant and co-accused persons in which replies I find, that the applicant and co-accused persons have referred to the conditional resignation tendered by them on 1st November, 1976 but the same were not produced with the complaint in question and/or in P. E. By these show-cause replies which are dated 30th April, 1977 the applicant and co-accused persons had demanded payment of their dues, on account of non-acceptance of their resignation. It may further be noted, that there is nothing in the complaint or in the statements of the witnesses examined in P. E., that applicant and/or co- accused persons were in custody and responsible for the stocks in question or in any way connected with given delivery of the said stocks, so as to make them responsible for the alleged shortage even prima facie. There are no allegations in the complaint, that the applicant and/or co-accused persons have removed any stocks unauthorisedly from the Factory, in order to cause wrongful loss to the Company and gain to themselves. In view of all these conclusions of mine in my opinion the law laid down by Hon'ble Supreme Court in 1979 Monthly Review page 94 is not applicable to the facts of the present case and consequently the above application is maintainable and since the complaint and the statements of the prosecution witnesses examined in P. E. does not prima facie disclose, that the applicant and/or co-accused persons:-were in any way responsible for the alleged shortage discovered in September, 1976 the taking of cognisance of the complaint in question, by the learned trial Court, amounted to the abuse of the process of the learned trial Court and consequently the continuance of the proceedings, which are not likely to lead to the conviction of the applicant would amount to harassment of the applicant and consequently would amount to abuse of the process of the learned trial Court.

Since two co-accused persons are reported to be fugitive from la and/or not before me, I allow the above application as far as applicant alone is concerned and quash the proceedings pending against him, in the Court of S. D. M., Nawabshah, in the shape of complaint No. 55/77. under sections 403, 406, 409 and 420, P. P. C., read with section 34, P. P. C. and discharge the Bail Bonds executed by the above applicant, in the said proceedings.

M. Y. H. Proceedings quashed.

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