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Criminal Miscellaneous Application for Quashment No. 1 of 1985, decided on 16th September, 1985.

‑‑‑S. 179‑‑Jurisdiction, basic requirement of law‑‑Court within whose local limits or jurisdiction an offence is committed will have jurisdiction in dealing with matter.‑‑[Jurisdiction].

‑‑‑S. 179‑‑Penal Code (XLV of 1860) S. 406/420‑‑Jurisdiction‑ Complainant in his complaint alleging that while at city 'L' he paid a certain amount to accused as earnest money in connection with sale consideration for purchasing accused's house at L and that sometime later accused came to Q and received a further sum towards sale price and undertook to effect transfer of house in favour of complainant but later on dishonestly avoided sale and ultimately sold house to someone else‑‑Alleged agreement between parties arrived at L, and earnest money received on account of same, held, was main and important ingredient of transaction leading to constitute basic grievance‑‑Payment at Q made in affirmation of arrangement previously arrived at L, only an incidental act and seeking at most reassurance, not forming material or integral part either for main cause or for achieving accomplishment of same and could neither be said as 'major act' or 'cause' nor consequence ensuing there from‑‑Court at Q where a formal, incidental or intermediary action was taken, held, could not assume jurisdiction for adjudicating matter and entertain complaint.‑‑[Jurisdiction].

Ibadat Hussain v. State A I R 1955 All. 363; Kashi Ram v. Emperor A I R 1934 All. 499 and Mst. Haseena alias Munni and others v. Ismail and another 1980 P Cr. L J 118 rel.

‑‑‑S. 406/420---‑Criminal Procedure Code (V of 1898), S. 561‑A‑ Complainant and accused arriving at an agreement of sale of accused's house at L to complainant‑‑Accused allegedly receiving a certain amount of money from complainant at L where agreement reached and some amount at Q towards sale consideration‑‑Accused backing out and selling house to some one else‑‑Dispute, held, was purely of a civil nature for which Courts on criminal side would have no jurisdiction‑‑Innocent Payment made at Q merely to strengthen terms of agreement would not constitute any offence for initiating any action at Q.

Mst. Kamila Khatoon and another v. The State and another 1982 P Cr. L J 1035; Allah Bakhsh and others v. The State 1973 P Cr. L J 104; Sher Muhammad v. The State 1977 P Cr. L J 48; Abdur Razak and others v. The State 1977 P Cr. L J 54; Muhammad Ashraf v. Jamaluddin and others 1977 P Cr. L J 130; Abdul Ghani v. Kandero and another 1977 P Cr. L J 135; Miss Noor Jehan v. The State and others 1971 PCr.LJ 1006; Saleh Muhammad v. The State 1971 P Cr. L J 1329; Syed Wajid Hussain v. The State and another 1975 S C M R 165; Hyder Ali v. Khuda Dino and another 1976 P Cr. L J 195; Muhammad Sharif v. Khan Mir Wali Jan and another P L D 1969 Pesh. 156 and Tahir Islam v: The State and another 1984 P Cr. L J'274 ref.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 406/420‑‑Quashing of proceedings‑‑Allegation of complainant against accused contradicted and falsified by his own statement on oath and by statements of two witnesses recorded at time of preliminary inquiry‑‑Payment of amount allegedly made by complainant to accused becoming doubtful in circumstances of available facts‑‑Neither any case made out against accused on merits nor any offence of criminal nature constituted against him‑‑Case against accused at most of civil nature and 'important ingredients of transaction between parties leading to constitute basic grievance taking place at L‑‑Progress in proceedings in criminal Court at Q tending to cause abuse of process of Court‑‑Proceedings quashed.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 406/420 Inherent jurisdiction‑‑Inherent powers under S. 561‑A, Criminal Procedure Code, neither an alternate nor an additional jurisdiction but exercisble in interest of justice to avoid abuse of process of law‑‑Powers under provision of S. 561‑A, Cr.P.C., held, could not be utilised to interrupt or divert ordinary course of procedure‑‑In order to ascertain powers exercisable under 5.561‑A, Cr.P.C. special and independent facts and circumstances in each case have to be judged on its own merits If High Court was satisfied that proceedings initiated against accused were mala fide or dishonestly intended at his harassment or facts even as stated did not constitute any offence or proceedings were intended at abusing process of Court or tended towards defeating interest of justice, or case evidently had no probability of bringing home accusation against accused or proceedings would not advance interest of justice, then in any of such situations jurisdiction under S. 561‑A, Cr.P.C. could be legitimately exercised to rectify illegality‑‑Main object of inherent jurisdiction available to Courts was to provide authority for doing real and substantial justice and to prevent abuse of process of law at any stage of proceedings.

Tahir Islam v. The State and another 1984 P Cr. L J 274; Ghulam Muhammad v. Muzamal Khan and others P L D 1967 S C 136; Syed Manzoor Hussain Shah v. Syed Hussain Naqvi and others 1983 S CMR 775; Muhammad Rashid v. State 1981 SCMR (Azad J & K) 110; Muhammad Anwar and others v. State 1976 PCr.LJ 1325; Allah Bakhsh and others v. The State 1973 P Cr. L J 104; Saeed Ahmed Siddiqi v. The State 1983 P Cr. L J 1619 and Rashid Akhtlar Nadvi v. Maj. Irshad Ahmad Lodhi and others P L D 1965 Lah. 492 rel.

Khalid Malik for Petitioner.

Raja M. Afsar for Respondent.

Dates of hearing: 15th and 16th September, 1985.

This application under section 561‑A, Cr.P.C. seeks quashment of criminal proceedings initiated against petitioner on the complaint filed by respondent under section 406/420, P.P.C. which at present is pending adjudication before Extra Assistant Commissioner (City Magistrate) and Magistrate First Class Quetta.

2. Brief facts of the case are that on 1‑10‑1983 respondent lodged a complaint under section 406/420, P.P.C. against the petitioner alleging that towards month of March, 1983, while at Lahore he expressed his desire to purchase a house in a reasonable locality at Lahore. Sometime later petitioner however told respondent that he is prepared to sell his own house. According to allegations in the complaint parties mutually agreed for the sale and purchase of house for Rs.3,30,000 (three lac thirty thousand) out of which certain amount was paid to the petitioner at Lahore as earnest money. It is alleged that sometimes later in the same month (March 19831 petitioner came to Quetta and obtained Rs.40,000 from petitioner in presence of Muhammad Afzal and Manzoor Ahmed in connection with sale consideration of said house and in presence of said witnesses assured that he would arrange transfer of his house at Lahore in his favour. It is the case of respondent that petitioner thereby obtained a total amount of Rs.1,00,000 upto 20th March, 1983 both at Lahore and Quetta and throughout undertook to effect transfer of house in his favour, but later dishonestly avoided to do so rather to the contrary is reported to have sold his house bearing No. 42, Khyber Block, Allama Iqbal Town, Lahore to someone else. Therefore, it was alleged that petitioner has cheated the complainant and was liable to be punished under sections 406 and 420, P.P.C. It may be mentioned that in order to support his assertion regarding payment of forty thousand at Quetta two witnesses namely Muhammad Afzal and Manzoor Ahmed Mir were examined during preliminary inquiry, and process was issued for the appearance of petitioner. On coming to know about these proceedings petitioner applied for, anticipatory bail which was initially granted on 11‑10‑1983 by learned additional Sessions Judge, Quetta and was confirmed on 5‑12‑1983. It is the case of petitioner" that proceedings against him have beep got initiated by the respondent with ulterior motives only to cause him harassment in view of business rivalry and dialatory tactics are being adopted in the matter because petitioner has to come from Lahore to attend the proceedings.

3. During the pendency of proceedings on 2‑10‑1984 petitioner moved an application before E.A.C. and (City Magistrate), Magistrate First Class, Quetta seeking his acquittal and dismissal of the complaint on the ground that allegations in the complaint do not constitute any criminal offence and at best would make out a case of purely civil nature. and that proceedings is merely intended at causing him harassment. This application was rejected by the trial Court on 17‑10‑1984 observing that matter was still at preliminary stage and cognizance had already been taken. The petitioner challenged this order by means of Revision Petition No. 16 of 1984, which was also dismissed by learned Additional Sessions Judge, Quetta vide order, dated 9‑3‑1985. Aggrieved by above‑said orders of both the Courts below present application for quashment of proceedings and the orders, has been filed, in this Court on 21‑4‑1985.

4. Mr. Khalid Malik learned counsel for the petitioner has vehemently urged that (i) allegations in the complaint do not constitute any criminal offence and even if case of complainant is taken at its best, it would only make out case of a civil nature, (ii) the statement of the complainant as well as statement of two witnesses recorded during preliminary inquiry falsify the assertions contained in the complaint, and, therefore, cognizance could not be taken in the matter, (iii) cause of action of the offence if any arose at Lahore and the consequences if any also were to be ensued at Lahore where the property is situate., therefore, Courts at Quetta have no jurisdiction to entertain the complaint or issue process against the petitioner in the matter. On the other hand Raja M. Afsar Advocate learned counsel for the respondent has vehemently opposed the petition contending that, matter was still at preliminary stage, evidence had not yet been recorded, therefore petition for quashment was premature, (ii) that entertainment of quashment of proceedings at this stage would constitute stifling of prosecution case, (iii) that allegations in the complaint together with the statement of complainant and his witnesses recorded during preliminary ‑inquiry. validly constitute commission of offence by the accused, and (iv) part payment received by petitioner at Quetta is sufficient to constitute jurisdiction for proceeding against the petitioner in the complaint.

5. Learned Advocate‑General appeared on 13‑8‑1985 partly argued the matter and supported the request for quashment of the proceedings asserting firstly that main transaction had taken place at Lahore and the consequence if any were also to ensure there, as such Court at Quetta could not entertain complaint and secondly allegations reflect that dispute between the parties is of civil nature.

6. It is interesting to note that the case was adjourned as part heard. Later on 15‑9‑1985 Assistant Advocate‑General appeared on behalf of State for making further submissions, but surprisingly he adopted diametrically opposite stand and vehemently opposed the quashment on the ground on which learned counsel for respondent had already addressed. Contradictory stand of two law officers in the same case is not appreciated. However in this peculiar situation Advocate‑General was also sent for who maintained his previous stand and in addition also relied 'on some case‑law in support of his earlier submissions. Assistant Advocate‑General insisted on his stand, therefore, in order to arrive at correct conclusion Assistant Advocate‑General was also heard on 16‑9‑1985. He has contended that since matter was at preliminary stage, therefore, the proceedings for quashment would constitute usurupation of powers of the trial Court, he also asserted that on account of part payment made at Quetta jurisdiction will also be available to the Courts at Quetta to adjudicate upon the matter.

7. I have considered arguments advanced by learned counsel for the parties and also examined the record.

8. The averments of the complaint suggest that main transaction pertained to purchase of house situate at Lahore. Admittedly negotiation for the said transaction took place at Lahore, and sale consideration was settled to be Rs.3,30,000 as a result thereof certain amount by means of earnest money was also paid to the petitioner at Lahore.

Second limb of this transaction is stated to be at Quetta. It is alleged that, respondent paid to the petitioner another sum of Rs.40,000 in connection with sale consideration, in presence of witnesses Muhammad Afzal and Manzoor Ahmed when petitioner further assured the respondent to carry out transfer of the house in his favour.

Third circumstance mentioned in the complaint is of 8th September, 1983 which indicates that on said date complainant went to Lahore with balance of sale consideration for reminding the petitioner to effect transfer of house in his favour. It transpired that petitioner with a view to defraud complainant has dishonestly had already sold said house to some one else. According to respondent since petitioner violated his undertaking, therefore, he was responsible for the commission of offence accordingly he filed a complaint before E.A.C. and Magistrate 1st Class, Quetta on 1‑10‑1983.

9. Primary question for consideration obviously would be whether Court at Quetta has at all jurisdiction to entertain the complaint in this case. Relevant provisions for determining "Place" of enquiry of trial are contained in Chapter XV of Criminal Procedure Code. It is basic requirement of law that a Court within whose local limits or jurisdiction an offence is committed would have jurisdiction for dealing with said matter. However for determining "Place" where particular offence could be tried. Section 179, Cr.P.C. is relevant, which is reproduced below:‑

"179. When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done., or any such consequence has ensued."

Therefore, it has to be ascertained (i) firstly place where the alleged offence is committed by reasons of a thing' having been done at that place, and (ii) secondly the consequences of said transaction which was to ensue there from. Viewing this situation from the angle of facts in this case, it is quite evident that "'main action" constituting cause for filing complaint, culminating in the present proceeding relates to transaction for the purchase of house, at Lahore which too had taken place at Lahore. The consequences which is to follow in respect of said transaction would be accomplishment of the transaction by effecting transfer of property in favour of the respondent.

10. It has to be seen whether alleged payment of rupees forty thousand can be deemed to be main cause for making out an offence or be treated as consequence ensuing therefrom. Evidently alleged agreement arrived at Lahore and earnest money received on account of the same is main and important ingredient of the transaction leading to constitute basic grievance. Now effect regarding payment of rupees forty thousand allegedly made at Quetta has to be evaluated. Apparently such payment would be reaffirmation of arrangement arrived at between the parties seeking at the most reassurance. It is though incidental to the main transaction but does not form material or integral part either for the main cause or for achieving accomplishment of the same. It is clearly an incidental act which. is loosely connected with either of the phases. It is certainly is neither "Major, Act" or "cause" nor the "consequence" ensuing there from. This step is merely regulatory or complementary for both these situations. Essential element constituting consequence in the given set of circumstance, would be accomplishment of the arrangement by effecting, transfer in favour of respondent which of course had to take place at Lahore. Thus, Court where formal incidental or intermediary actions are taken only to supplement "cause or "consequence" cannot assume jurisdiction for adjudication of matter. In this view observation, in the following cases have been relied.

(i) Itadat Hussain v. State A I R 1955 All. 363.

(ii) Kashi Ram v. Emperor A I R 1934 All. 499.

(iii) Mst. Haseena alias Munni and others v. Ismail and another. 1980 P Cr. L J 118

In the light of above discussion I am inclined to observe that Court at Quetta where incidentally a small amount of sale consideration is alleged to have been paid will have no jurisdiction to entertain the complaint.

Next aspect of the case relates to factual position, whether on the stated allegation any case of criminal nature is made out against petitioner. The allegations against petitioner can be considered in the light of following break up of the transaction:

It may be seen that even on the stated facts there was neither any inducement nor any dishonest act, alleged at any stage of above‑said transaction. There was at the most a deal between the parties for purchase of a particular house in which earnest money was statedly paid. The contents of complaint itself indicate that there was understanding between the parties is that complainant had the option either for giving effect to the contract of sale of house. Thus, cumulative effect of all these circumstances is that even if all factors are taken into consideration, same would only indicate breach of arrangement arrived at between the parties. There is absolutely no criminality involved in whole transaction. It suggests purely a civil dispute for which Courts working on the criminal side have no jurisdiction. Besides it may also be observed that payment of additional amount by complainant to the petitioner is alleged evidently indicate that till the time of said payment at Quetta bona fides of petitioner were not doubted. This payment was made by respondent merely to further bind the petitioner. Therefore, even otherwise such innocent payment attempting to strengthen terms of agreement arrived at between the parties would not constitute any offence at all specially for initiating any action at Quetta. There is no dearth of decided cases on this legal aspect however some of them as mentioned below may be referred (i) Mst. Kamila Khatoon and another v, The State and another 1982 P Cr. L J 1035, (ii) Allah Bakhsh and others v. The State 1973 P Cr. L J 104, (iii) Sher Muhammad v. The State 1977 P Cr. L J 48 (iv) Abdur Razaq and others .v. The State 1977 P Cr. L J 54, (v) Muhammad Ashraf v. Jamaluddin and others 1977 P Cr. L J 130, (vi) Abdul Ghani v. Kandero and another 1977 PCr.LJ 135, (vii) Miss Noor Jehan v. The State and others 1971 PCr.LJ 1006, (viii) Saleh Muhammad v. The State 1971 P Cr. L J 1329, (ix) Syed Wajid Hussain v. The State and another 1975 S C M R 165 (x) Hyder Ali v. Khuda Dino and another 1976 P Cr. L J 195, (xi) Muhammad Sharif v. Khan Mir Wali Jan and another P L D 1969 Pesh. 156 and (xii) Tahir Islam v. The . State and another 1984 P Cr. L J 274.

In addition to the above it may be seen that allegation of complaint are specifically contradicted and falsified by the statement on oath of complainant and his two witnesses recorded at the time of preliminary enquiry. All the three witnesses have mentioned that total earnest money amounting to one lac was given to the petitioner, at Quetta whereas in the complaint payment of only rupees forty thousand is mentioned. Payment of amount as alleged in the complaint, therefore, becomes doubtful. In the circumstances on the available facts, neither any case is made out on merits nor any offence of criminal nature is constituted against the petitioner.

Learned counsel for the private respondent and Assistant Advocate‑General objected to the maintainability of the petition asserting that inherent power under section 561‑A, Cr.P.C. cannot be availed at this stage as it would tantamount to usurupation of powers of lower Court. Reliance in this behalf has beer placed on the observation in case Ghulam Muhammad v. Muzamal Khan and others P L D 1967 S C 136. There is no doubt in the principle of law laid down in the case noted above: Inherent jurisdiction provided under section 561‑A, Cr.P.C. is neither an alternate nor additional jurisdiction and is obviously exercisable in the interest of justice to avoid abuse of process of law. The powers under this provision of law cannot be utilised to interrupt or divert the ordinary course of procedure. The observation in this judgment that High Court should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face even if evidence believe does not disclose any offence; the case must be allowed to proceed according to law and restoring to provisions of section 561‑A, Cr.P.C. should not be lightly made as it may circumvent the due process of law. Therefore, in order to ascertain powers exercisable by the Court under section 561‑A, Cr.P.C. special and independent facts and circumstances in, I each case have to be judged on its own merits. It is now almost settled law that in the event High Court .is satisfied that proceedings initiated against an accused are mala fide or dishonestly intended at his harassment or the facts even as stated do not constitute any offence or proceedings are intended at abusing the process Court or tends J towards defeating interest of justice, or the case evidently has no probability of bringing home accusation against accused or the I Proceedings would not advance interest of justice, than in any of such situation's jurisdiction can be legitimately exercised to rectify illegality. Main object of inherent jurisdiction available to the Courts to provide authority for doing real and such substantial justice, and to prevent abuse of law at any stage of the proceedings. In this view I am supported observations in the following cases (i) Syed Manzoor Hussain Shah v. Syed Hussain Naqvi and others 1983 S C M R 775, (ii) Muhammad. Rashid v. State 1981 S C M R (Azad J & K) 110, (iii) Muhammad Anwar and others v. State 1976 P Cr. L J 1325, (iv) Allah Bakhsh and others v. The State 1973 P Cr. L J 104, (v) Saeed Ahmed Siddiqi. v. The State 1983 P Cr. L J 1619 and (iv) Rashid. Akhtar Nadvi .v. Maj Irshad Ahmed Lodhi and others P L D 1965 Lah. 492.

Since on the scrutiny of the facts of the case I have held that neither Courts at Quetta have jurisdiction to entertain the complaint against petitioner or facts constitute an offence., therefore, any progress in the proceedings would certainly tend to cause abuse of process of Court, therefore, in the light of above discussion I am inclined to hold that in this case inherent jurisdiction of this Court must be invoked.

Thus, for the foregoing reasons I am satisfied that neither any case is made out against the petitioner on' merits nor jurisdictional authority vests in the Courts of Quetta for initiating proceedings against the petitioner, same is consequently ordered to be quashed.

The petition is accordingly disposed of with no order as to costs.

M.Y.H. Proceedings quashed.

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