Find a Lawyer

Criminal Miscellaneous Application No. 1840 of 1986, decided on 15th July, 1987.

‑‑‑Ss. 249‑A, 265‑K & 561‑A‑‑Section 249‑A, an enabling provision not putting any restrictions on inherent powers of High Court‑‑Section 265‑K and S.561‑A, Cr.P.C. are co‑extensive and both can be resorted to and there is no bar in moving High Court without approaching Trial Court first.

1987 P Cr. L J 33 and P L D 1987 Lah. 212 ref.

Mian Munir Ahmed v. The State 1985 S C M R 257 rel.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 420‑‑Quashing of proceedings‑‑Delay of more than one and a half years occurred in filing complaint and no report was lodged with police although offence allegedly was cognizable‑ ‑Complaint and statement of complainant vague on face of which no case under S. 420, Penal Code, for which accused were charged, made out and proceedings not likely to end in conviction of accused‑‑Proceedings against accused quashed in circumstances.

Abdur Rasheed and 2 others v. The State and another 1987 P Cr. L J 1380 and Mohammad Ali and another v. Assistant Commissioner Narowal and others 1987 S C M R 795 rel.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 420‑‑Quashing of proceedings‑‑Question whether proceedings against co‑ accused who were not made a party in quashment proceeding against accused, were also to be quashed‑‑Allegations against all accused similar in one case and case of co‑accused inseparable from case of accused‑‑Proceedings pending against co‑ accused also quashed.

Mst. Hamida v. The State and another P L D 1973 Kar. 478 rel.

A. Waheed Katpar for Petitioner.

Mazhar Ali B: Chohan for Respondents Nos.2 and 3.

Mrs. Salima Nasiruddin for the State.

Date of hearing: 5th May, 1987.

This is an application under section 561‑A, Cr.P.C. for quashment of proceedings pending against the applicants under section 420, P.P.C. in case Mohammad Siddik v. Haseenuddin and three‑others, before the City Magistrate, Dadu.

The brief facts giving rise to the present application are that on 15‑ 10‑ 1986 respondent Mohammad Siddik filed a direct complaint before the learned City Magistrate, Dadu, inter alia alleging therein that he is a Zamindar by profession. Accused Haseenuddin and Mohiuddin are brothers inter se, while accused Jan Alam and Tehseen are sons of accused Haseenuddin. That on 21Et March, 1985 the above accused came to his village for a change and stayed there. He took them to the forest for patridge shooting. At night while they were having chit chat accused Haseenuddin observed that there was an acute problem of law and order situation in Dadu District and that people and Zamindars were being kidnapped. He suggested that if he had any money, then he will get him a plot at Scheme No. 33 where he was posted, and if he desired to purchase plot then he will get him the same at a maximum of Rs.70,000. He also suggested that complainant should settle down at Karachi, saying that he would also help him in getting the house constructed. He further told the complainant that his Masat (son of mother's sister) Dr. Munir was already practising at Karachi. On the above suggestion of all the accused, complainant gave Rs.60,000 to them on the spot in presence of ,witnesses. Thereafter, he paid the amount of Rs.10,000 towards price, and Rs.2,000 for documentation etc. After some time Dr. Munir wrote a letter to the complainant from Karachi that he had heard that complainant had paid Rs.72,000 to the accused for a plot and that attitude of the accused did not appear to be proper, therefore, he must reach Karachi within two days. After two months he met the accused at Karachi, stayed at their house and spoke to them about the plot. They kept him on hopes and when he demanded his money back, they promised that they will send it through Dr. Munir but the money was never sent. On 4‑11‑1985 complainant again went to the accused, accused Jan Alam who used to sit as a Manager at the Estate Agency issued a cheque for Rs.15,000 which was taken by Dr. Munir to the Allied Bank at Karachi but there was no such account in the Bank The photostat copy of the cheque, as well as the copy of agreement executed by Jan Alam in the sum of Rs.52,000 have been produced. On 4‑ 7‑ 1986 another receipt in the sum of Rs.2,000 was executed, a duplicate. copy of which has been produced. The complainant narrated the above facts to his witnesses Ghulam Hussain, Mohammad Khan and Dr. Munir. They also reprimanded the accused. The accused admitted the receipt of amount and promised to pay back the same. But after having kept him on false hopes and promises they refused point blank and told him to do whatever he liked. They further issued threats of false cases and even murder. That the complainant, therefore, filed a direct complaint on 15‑ 10‑ 1986. The statement of the complainant was recorded. Thereafter, P.Ws. Mohammad Khan and Haji Ghulam Hussain were examined in P.E. After holding P.E. the learned Magistrate was pleased to issue process against the applicants/accused under section 420, P.P.C. The present application has been moved for the quashment of the above proceedings.

I have heard Mr. Abdul Waheed Katpar learned counsel for the applicants, Mr. Mazhar Ali Chohan learned counsel for the respondents Nos. 2 and 3, Mr. S. Sarfraz Ahmed learned A.A.‑ G. for the State, and have also gone through the documents produced by the parties.

It has been contended by Mr. Abdul Waheed Katpar learned counsel for the applicants that the complainant Mohammad Siddik is resident of Karachi and the applicants as well as Dr. Munir Ahmad Soomro also reside at Karachi. The complainant has shown his address to be resident of District Dadu in order to drag the educated applicants to Dadu with a view to harass and pressurise them. In support of his above contention he has produced certified copy of the Criminal Miscellaneous Application No. 28 of 1986 which was filed by complainant Mohammad Siddik against Mohammad Urs and others in the High Court of Sind at Karachi, on 8‑ 1‑ 1986. He has further contended that there were some dealings between Dr. Munir Ahmad Soomro, and co‑accused Jan Alam, and Dr. Munir Ahmad had got some documents executed from the accused. That on 3rd December. 1986 the applicants Nos. 1 to 3 were called at P.S. Nazimabad, threatened, and harassed. They were forced to execute an acknowledgment to pay Rs.72.000 on 6th December or else they will have to face music on 7th December, 1986. That on 7th December, 1986 applicant Tehseen filed a suit No. 1629 of 1986 in the Court of IVth Senior Civil Judge, Karachi, West for declaring the acknowledgment executed at Nazimabad as illegal having been obtained under duress and for return of ornaments taken by Dr. Munir. It has been further contended that all the documents produced by Mohammad Siddik pertained to Dr. Munir and none else. The complaint does not make out any criminal offence the proceedings are mala fide, false, and have been filed m order to harass and pressurise the applicants. He has further submitted that the applicant Mohammad Haseenuddin is a heart patient, Mohammad Moniuddin is suffering from diabetes and liver disease, and such certificates have been produced. He has also produced certificates to show that the applicants, were available at Karachi on 21st March, 1985. That at the most the dispute between Jan Alam and Dr. Munir was of civil nature. In support of his contention he has relied upon 1987 P Cr. L J 33 and P L D 1987 Lah. 212.

That there was inordinate delay in filing complaint.

Mr. Mazhar Ali Chohan appearing for the respondents Nos. 2 and 3 has contended that since the applicants had not moved the trial Court under section 249‑A, Cr.P.C. the present application was not maintainable. That the certificates produced by the applicants were unreliable and the delay in filing the complaint was not fatal.

Mr. S. Sarfraz Ahmed learned A.A.‑G. appearing for the State has contended that the documents consisting of receipts etc. show that there were some money dealings between co‑accused Jan Alain and Dr. Munir Ahmad, and the case filed by the complainant against the applicants appears to be false. In any case no criminal offence was made out and he has supported the quashment application.

I have considered the contentions of the learned counsel appearing for the parties, and have gone through the documents produced on behalf of the parties. Before going to the facts of the case, I would like to deal with the legal objection raised by Mr. Mazhar Ali about the maintainability of this quashment application. on the ground that trial Court had to be. moved first.

Section 249‑A, Cr.P.C. reads as under:‑

"Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence:"

The bare reading of section 249‑A, Cr.P.C. will show that it was an enabling provision which empowered the Magistrate to acquit the accused at any stage of the case, if he considered the charge to be groundless, or that there was no probability of the accused being convicted. This provision did not repeal the provisions of section 561‑A, Cr.P.C. nor there was any restriction put on inherent powers of the High Court, but the powers of the trial Court a/s 249‑A, section 265‑K and section 561‑ A, Cr.P.C. were co‑extensive, and both could be resorted to, and there was no bar in moving the High Court without approaching the trial Court first.

In Mian Munir Ahmed v. The State 1985 S C M R 257 it was held:‑

"That the powers of the trial Court under section 249-A, Cr.P.C., and section 265‑K, Cr.P.C. are co‑extensive with the similar powers of the High Court under section 561‑A, Cr.P.C., and both can be resorted to.

It would, of course, be proper to approach the trial Court in the first instance, but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561‑A, Cr.P.C. directly:"

From the above discussion it is clear that the present application is not barred by law, and the first objection regarding non‑maintainability of this quashment application is untenable.

Now coming to the merits of the case the certified copy of Criminal Miscellaneous Application No. 28 of 1986 filed by complainant Mohammad Siddik before this Court under section 491, Cr.P.C. shows that he is resident of House No. 105, Sector 4‑‑E, Aurangi Town, Karachi. It was admitted in the complaint that Dr. Munir Ahmad is his Masat (son of sister of his mother). The receipt dated 5‑5‑1985 allegedly executed by accused Jan Alam shows that he had received Rs.20,000 from Dr. Munir Ahmed as advance on account of a transaction concerning immovable property, and Rs.58,000 were fixed as price of the said property

The cheque, dated 4‑‑11‑1985 issued by Jan Alam for Rs.15,000 is also in favour of Munir Ahmad, the agreement, dated 4‑7‑1986 also shows that Jan Alam had taken Rs.72,000 from Munir Ahmad Soomro, out of which he will pay Rs.20,000 on 15th July, while remaining amount Rs.52,000 will be paid by him on 15th August, 1986. The agreement shows that this amount he had received in respect of a plot but the contract could not be finalised, and, therefore, he will return the said amount.

From the above documents it is clear that the complainant Mohammad Siddik is resident of Karachi and the deal with regard to plot, if any, was between accused Jan Alam and Dr. Munir Ahmad Soomro, and it appears that for some reason the deal could not be materialised and some amount remained outstanding against Jan Alam, therefore, the complainant who is admittedly Masat' of Dr. Munir Soomro, was set up to file a complaint against the. entire family of Jan Alam. There was delay of more than one and half years in filing the complaint, and no report was lodged with the police although the offence as alleged was a cognizable offence. The complaint and statements of complainant, P.Ws. Mohammad Khan and Haji Ghulam Hussain are vague, inasmuch as they do not show as to whom the money was paid and who took the responsibility for getting the plot to the complainant. On the face of complaint itself, and the statements recorded in P.E. no case under section 420, P.P.C. was made out, specially in view of the assertion of the complainant party that accused Jan Alam was running Estate Agency, and there was no evidence that the accused had no intention to get plot to the complainant party at the initial stage.

In Abdur Rasheed and two others v. The State and another 1987 PCr.LJ 1380 it was held by this Court:‑

"The allegations set out in the complaint smell of mala fides. The complainant did not lodge any F.I.R. against the applicants/accused and the direct complaint was filed after about one and half months. The delay was not explained. In the facts and circumstances of the case the transaction appeared to be purely of a civil nature and, therefore, the proceedings were quashed:"

In Mohammad Ali and another v. Assistant Commissioner Narowal and others 1987 S C M R 795 it was held by the Hon'ble Supreme Court that:

"On the face of it, the dispute between the parties is of civil nature. There is nothing on record to indicate that at the time when the petitioners took the money from the complainant they had no intention or were not in a position to give the lease of the cinema canteen to the complainant, and therefore, the proceedings under sections 406, P.P.C. and 420, P.P.C. were quashed.

From the above discussion I am of the considered view that no case under section 420 was made out against the applicants, and that the proceedings will not end in conviction of the applicants, and therefore, I have come to the conclusion that the proceedings must be quashed.

However, there is another important question, which requires consideration i.e. co‑accused Jan‑e‑Alam has not been made party in the present proceedings (whether the applicant or respondent) and, therefore, I have to see whether the proceedings should be quashed only against the applicants or the entire proceedings should be quashed.

I have given my anxious consideration to this aspect of the case. The case is one, the allegations against all the accused are similar, and the case of Jan‑e‑Alam cannot be separated from the case of the applicants.

In the case of Mst. Hamida v. The State and another, P L D 1973 Kar. 478, it was held by Tufail Ali A. Rehman, C.J. (as he then was)

"that since the case of applicant and the other co‑accused, who were not parties in the quashment application were inseparable, it would be anamolous to permit the prosecution to continue against the co‑ accused while it is quashed as against the petitioner. The power under section 561‑A, Cr.P.C. is not dependent upon the application of any particular person. The fact that the other co accused have not been impleaded nor have any notice of these proceedings also does not matter: inasmuch as an order of quashment can hardly be to their prejudice and the entire proceedings were quashed:"

In view of the above discussion I allow this petition and quash proceedings pending against the applicants and co‑accused Jan‑e‑Alam under section 420, P.P.C., in case of Mohammed Siddique v. Haseenuddin and three others pending before the City Magistrate Dadu.

I had decided this matter on 5‑5‑1987 by a short order and these are the reasons for the same.

M.Y.H./M‑208/K Proceedings quashed.

Find a Lawyer Near You

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