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Criminal Miscellaneous No. 79-Q of 1973, decided on 17^th May, 1983.

---S. 561-A-- Quashing of proceedings-- Petitioner admittedly obtained loan by availing overdraft facility from Bank-- Contents of F.I.R. also disclosing no commission of offence by petitioner except his liability to re-pay loan to Bank-- Civil suit filed by Bank for recovery of loan also pending decision-- Criminal proceedings pending against petitioner, held, nothing but an abuse of process of Court-- Proceedings quashed, in circumstances.

Malik Amjad Hussain for Petitioner.

Yahya Saleem for the State.

Date of hearing: 17th May, 1983.

This Criminal Miscellaneous Petition seeking quashment of criminal proceedings against the petitioner arising out of F.I.R. No. 2, dated 2-2-1970 of Police Station Kalabagh, district Mianwali, under sections 468, 471, 408 and 420, P.P.C. pending in the Court of Assistant Commis sioner, Isa Khel, district Mianwali, has been filed by Sadiq Hussain petitioner.

2. It is alleged in the petition that the petitioner is a businessman. He had Account No. 733 with the then Standard Bank Limited, Kalabagh Branch. He got sanctioned an overdraft facilities of Rs. 40,000. He availed of the facility and utilized the amount in his business. His son-in-law Malik Muhammad Asghar, was posted as Manager of Kalabagh Branch of the aforementioned bank at the relevant time. He approached the petitioner and intimated him that the authorities have withdrawn the overdraft facility and, therefore, the petitioner should return and deposit the amount of Rs. 40,000. Thereupon, the petitioner handed over a sum of Rs. 40,000 to the said Malik Muhammad Asghar and obtained a receipt from him. The said Malik Muhammad Asghar probably did not deposit the amount in the bank. He absconded subsequently. He also deserted the petitioner's daughter. The bank originally tried to recover the amount from the petitioner through Martial Law Authorities. The petitioner filed a Consti tutional Petition, viz. W.P. No. 1526 of 1969. In that case, it was observed by this Court: "It its admitted that no action has been taken against the petitioner. It is, therefore questionable whether in the circumstances of the case, when on admitted facts there is prima facie a civil liability on the part of the petitioner, can any action under Martial Law Regulations be taken against the petitioner." With the above remarks, the petition was dismissed as premature. Subsequently, however the bank got registered a case against Malik Muhammad Asghar, the petitioner and one Muhammad Saleem under sections 408, 420, 468 and 471, P.P.C. at the Police Station Kalabagh, district Mianwali. The petitioner previously filed Criminal Miscellaneous No. 272-Q-1969, but by that time the challan was not yet submitted and his petition was dismissed as being premature. It was however, observed that he could file a fresh petition if the police insisted upon his prosecution. Subsequently, when the challan was submitted in Court on the aforementioned counts, the petitioner filed the present quashment petition.

3. The contents of the F.I.R. No. 2, dated 2-2-1970 (Annexure 'A'), if analysed lead to a conclusion that no allegation of commission of any criminal offence has been levelled against the petitioner. It is Malik Muhammad Asghar, the employee of the bank who is accused to have committed the aforementioned offences.

4. The petitioner admittedly obtained loan by availing overdraft facility from the Kalabagh Branch of the then Standard Bank and thus incurred a civil liability vis-a-vis the said bank. It is an admitted fact that the bank has already ilk ed a civil suit for recovery of the amount of overdraft against the petitioner. The petitioner's contention in that behalf is that he has already paid the amount in question to Malik Muhammad Asghar, the then Manager of the Branch who also issued a receipt for the same in his, favour. In Haider Ali v. Khuda Dino and another 1976 P Cr. L J 195 it has been held that where the amount was given to the accused purely as a business loan leaving him free to deal as he liked, the facts did not disclose any criminal offence. It was further ruled in this case that where the facts alleged in the complaint did not disclose any offence allowing of criminal proceedings to continue amounted to mere abuse of process of Court prejudicial to the object of administration of justice. In Shera and others v. The State P L D 1972 Lah. 573. it was found that where there was no evidence against the accused for which he could be called upon to answer during the trial, the criminal proceedings initiated A against him were just an exercise in futility and such proceedings were, therefore, liable to be quashed. In Shaikh Ahmad v. Sheikh Muhammad Yunus 1971 P Cr. L J 331 it was found that parties transacted business which led to civil and criminal litigation, in the circumstances of the case the criminal proceedings were stayed.

5. The learned counsel for the State was asked to explain as to in the light of the contents of the F.I.R. what offence has been committed by the petitioner but he could not suggest the commission of offence on the part of the petitioner except his liability to repay the loan to the bank which certainly is a civil liability.

6. In the circumstances, it is concluded that according to the allegations contained in the F.I.R. whereby criminal proceedings have been initiated against the petitioner, no offence is alleged to have been committed by him. For his alleged liability to repay the loan to the bank, the civil suit filed by the bank against him is already pending. In this view of the matter, the criminal proceedings pending against the petitioner are nothing but an abuse of the process of Court. Such proceedings are found to be futile in the circumstances. The quashment petition is, therefore, allowed and the criminal proceedings referred to above are quashed so far as the petitioner is concerned.

S. G. D. Proceedings quashed.

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