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Criminal Miscellaneous Application No. 39 of 1981, decided on lath August, 1984.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 420 a 506(1)‑‑Quashing of proceedings‑‑Accused alleged to have taken an advance from complainant on basis of a power of attorney for selling a land of a person on whose behalf power of attorney was held, by him but later on it transpired that land did not belong to that person‑‑Prior to filing of complaint by complainant accused filed a civil suit for declaration and permanent injunction against complainant‑‑Accused not residing in district where complainant residing but living in another district and it was not believable that he would come to complainant to negotiate sale of land‑‑Whereabouts of complainant also not known‑‑Continuance of proceedings against accused appearing to be abuse of process of Court‑ Proceedings quashed.

S. Ali Aslam Jafferi holding brief for Usman Ghani Rashid for Applicant.

Zawar Hussain Jafferim, A.A.‑G. for the State.

Nemo for Respondents.

Date of hearing: 19th August, 1984.

By this application under section 561‑A, Cr.P.C., the applicant Adam son of Jumo Khan seeks quashment of a criminal case instituted against him on a direct complaint by the respondent Ghulam Mustafa in the Court of Additional City Magistrate, Shikarpur, on the ground that it is a false and frivolous case filed at the instance of one Umardin son of Allahrakhio against whom he has filed a civil suit in the Court of Senior Civil Judge, Moro.

Notice of this application was issued to the complainant Ghulam Mustafa, who is respondent No.l in this application. The notice could not be served on him and it was reported by the process‑serving agency that no such person was available at the given address.

The allegations contained in the direct complaint are that the applicant and two others named as Shafoo and Mohram residents of District Nawabshah had visited the complainant Ghulam Mustafa in District Shikarpur about two months before and negotiated with him for sale of certain land on the basis of a power of attorney and taken from him a sum of Rs.10,000 as advance payment. It is further alleged that the applicant and his associates did not finalize the transaction and it was found that the land promised to be sold did not belong, to the persons on whose behalf the power of attorney was held by the applicant. It was thereafter that the direct complaint was filed in the Court of Additional City Magistrate, Shikarpur, on 8‑12‑1980.The learned Magistrate recorded statement of Ghulam Mustafa on the same day. He recorded statements of two witnesses Allahdad and Ghulam Akbar produced by the complainant on 13‑12‑1980. He then took the cognizance of offences punishable under sections 420 and 506(1), P.P.C. on that day and issued bailable warrants against the persons complained against.

It is contended on behalf of the applicant that he belongs to District Nawabshah and he had no reason to have visited District Shikarpur and contacted the complainant Ghulam Mustafa, who was not known to him, for sale of the land. It is further contended that the applicant has been victim of false implication at the instance of one Umardin son of Allahrakhio against whom he has filed a civil suit. It is alleged that the filing of the complaint was managed by the said Umardin's son Mr. Alisher Habibani, who was then serving as Civil Judge, Shikarpur. A certified copy of plaint of First Class. Suit No.41 of 1980 filed in the Court of Senior Civil Judge, Moro has been placed on record. It does bear out that the applicant has filed a suit against Umardin son of Allahrakhio and four others for declaration and permanent injunction. The suit was filed in September, 1980 whereas complaint against the applicant was filed in December, 1980. Although there is no direct evidence of involvement of Mr. Alisher Habibani in the filing of the case yet it is apparent that the suit filed by the applicant against Umardin son of Allahrakhio was prior to the filing of the complaint against him. It is hardly believable that the applicant residing in District Nawabshah went to the complainant in District Shikarpur and negotiated sale of the land. Moreover, the complainant is a person whose where abouts are not known. In the circumstances, the continuance of the proceedings before the Magistrate will amount to the abuse of the process of Court and proceedings of the case stand quashed.

M.Y.H. Proceedings quashed.

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