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---S. 561-A-Penal Code (XLV of 1860), Ss. 420 & 406-Proceedings based on allegation that accused after executing agreement to sell did not actually sell land nor returned advance money received by him at the time of execution of said agreement -Held, refusal to honour an agreement to sell or to pay back advance money did not prove mens rea-Dispute between parties being purely of civil nature a party could not be permitted to use criminal proceedings as a coercive measure--Proceedings quashed. -[Mens red].

Akbar Ali v. Julian H. Dinshaw and others 1971 S C M R 613 and Superintendent of Police, F. 1. A. v. Akhtar Hussain Bhutta P L D 1978 S C 193 ref.

Ch. Muhammad Younas for Petitioner.

Muhammad Ashraf and Ghulam Rasul for the Complainant.

Abdul Majeed for the State.

Facts necessary for decision of this petition are given below :--

Muhammad Ashiq on 20-10-1984 filed an application, dated 8-10-1984 before Martial Law Authorities with an allegation that Shaukat All son of Ch. Muhammad Ismail on 14-6-1981 agreed to sell land bearing Killa Nos.-15 16,17 of Square No. 36 in Chak No. 123-J. B., District Faisalabad for Rs. 4,00,000. Shaukat Ali had at that time represented himself to be the attorney of Mst. Hadayat Begum alias Munawar Begum, Sakina Begum, Rasul Begum and Khurshid Begum owners of the said property. It was alleged in the application that Mst. Hadayat Begum alias Munawar Begum was wife of Shaukat Ali and that she had played an active role alongwith her son Arshad Hussain at the time of execution of the agreement to sell dated 14-6-1981. Muhammad Ashiq alleged that the accused received Rs. 85,000 from him for the land and Ehata. They neither sold the land to him nor returned the amount received by them and in this way committed fraud with him. He alleged that Shaukat Ali received Rs. 1,00,000 from him by fraud though he was not attorney of Mst. Hadayat Begum etc. This petition was forwarded to the police on the basis of which the present case was registered on 23-12-1984 at Police Station People's Colony, Faisalabad. The police undertook investigation and filed challan under sections 420, 406, P. P. C. against Shaukat Ali petitioner, who on 3-8-1985 filed an application under section '49-A, Cr. P. C. for his acquittal. The said application was rejected on 18-8-1985 by the trial Magistrate who recorded the following order:

"In view of Ordinance XXVII of 1981 the application is not maintainable. Hence the same is rejected."

Shaukat Ali filed another application under section 249-A, Cr. P. C. bringing it to the notice of learned Magistrate that there were judgments of the High Court that section 249-A, Cr. P. C. still holds the field and as such the application could not have been held to be not maintainable. The learned Magistrate accepted the application and acquitted Shaukat Ali accused vide order dated 17-11-1985. Muhammad Ashiq complainant filed revision against the said order which was accepted by learned Additional Sessions Judge, Faisalabad vide the impugned order dated 2-7-1986. It was held by the learned Additional Sessions Judge that "no fresh cause of action had arisen to the respondent between the intervening period of the previously rejected application and the subsequent application moved before the learned Magistrate. In other words there was no material on the record from which it could be ascertained that there was no probability of the accused/respondent being convicted of any offence. Similarly, there was no documentary evidence forthcoming which could lead to the inference regarding the probability of accused being acquitted of the offence. He, therefore, remanded the case for trial according to law. Shaukat Ali has come up to this Court for quashment of this remand order.

It is contended on behalf of the petitioner firstly that the impugned order has been passed on a wrong assumption that the earlier petition under section 249-A, Cr. P. C. was dismissed on merits and secondly, that the dispute between the parties was of civil nature and the present criminal proceedings pending against the petitioner are abuse of the process of law. In support of this contention the learned c6unsel drew my attention to a receipt Annexure F', dated 15-1-1985 to argue that Muhammad Ashiq complainant has already received Rs. 1,00,000 from Shaukat Ali in full and final settlement of his claim.

2. I have heard the learned counsel for the parties and have also perused all the documents which form part of this petition. The impugned order dated 2-7-1986 seems to have been passed by learned Additional Sessions Judge under misconception that the earlier application under section 249-A, Cr. P. C. was dismissed on 18-8-1985 on merits. A perusal of the said order would show that the first application was not decided on merits. It was held to be not maintainable under an impression that section 249-A, Cr. P. C. was no longer on Statute Book and stood repealed. This was a mistaken belief. The correct legal position was brought to the notice of the learned trial Magistrate who after hearing the patties acquitted the accused under section 249-A. Cr. P. C. vide order dated 17-11-1985. There was. therefore, no justification for remand of the case on that ground. The learned Additional Sessions Judge, obviously, wrongly held that no fresh cause of action had arisen to the accused between the intervening period of two applications.

A bare perusal of the F. I. R. would show that the case against Shaukat Ali petitioner was of civil nature. According to Muhammad Ashiq complainant Shaukat Ali, representing himself to be attorney of his wife Mst. Hadayat Begum and her three sisters agreed to sell land for Rs. 4,00,000 vide an agreement to sell dated 14-6-1981. This land was not sold to Muhammad Ashiq nor the advance money received by Shaukat Ali was returned. Muhammad Ashiq on 13-6-198:1 i. e. about six months before registration of this case filed a civil suit (copy of plaint is Annexure G'), in the Court of Senior Civil Judge, Faisalabad against Shaukat Ali for recovery of Rs. 1,00,000. It appears that during pendency of the suit the parties reached a settlement as a result of which Shaukat Ali paid Rs. 1,00,000 to. Muhammad Ashiq on 15-1-1985. A receipt. Annexure F' was executed through which Muhammad Ashiq acknowledged the receipt of Rs. 1,00,000 through cheques and also undertook to withdraw the criminal proceedings lodged against Shaukat Ali vide F. 1. R. No. 688 dated 23-12-1984. The learned counsel appearing on behalf of the complainant admitted the receipt of Rs. 1,00,000 and execution of receipt Annexure 'F' by Muhammad Ashiq on 15-1-1985. After payment of Rs. 1,00,000 to Muhammad Ashiq, his counsel withdrew the suit which was dismissed by learned Senior Civil Judge, Faisalabad on 26-3-1985 leaving the parties to bear their own costs. (Copy of orders Annexure J'). The special power of attorney executed by Mst. Hadayat Begum and her sisters in favour of Shaukat Ali is Annexure 'K' on this file. The above facts would clearly indicate that the dispute between the parties was of civil nature and stood settled in proceedings before Senior Civil Judge, Faisalabad. The present proceedings against Shaukat Ali are based on the allegation that he, after executing agreement to sell did not actually sell the land nor returned the advance money received by him at the time of the execution of the said agreement. These facts do not constitute any criminal liability on the part of Shaukat Ali accused. Muhammad Ashiq admittedly received back Rs. 1,00,000 from Shaukat Ali and undertook to withdraw the present criminal proceedings. It seems that after institution of the civil suit, the criminal proceedings were initiated by Muhammad Ashiq complainant to put pressure on Shaukat Ali to settle the dispute. As a matter of fact the complainant did succeed in that effort. The only allegation against Shaukat Ali petitioner was that he did not honour the agreement to sell dated 14-6-1981. The refusal to honour an agreement) to sell or to pay back the advance money did not prove mens rea. The dispute between the parties was purely of civil nature and as such a party cannot be permitted to use criminal proceedings as a coercive measure. This was not a case where petitioner Shaukat Ali should suffer indignity of being an accused in a criminal case. The allegations against the accused even if assumed to be true disclosed no offence against him and as such criminal proceedings cannot be permitted to continue. Reliance for this is placed on Akbar Ali v. Julian H. Dinshaw and others (1) and Superintendent of Police, F. 1. A. v. Akhtar Hussain Bhutta (2). In these two judgments it was held by their Lordships of Supreme Court that dispute being purely of civil nature, cannot be allowed to drag on in criminal Courts. In my view the present criminal proceedings against Shaukat Ali petitioner amount to abuse of the process of Court. I, therefore, set aside the impugned --order dated 2-7-1986. The order of learned trial Magistrate dated 17-11-1985 is restored and the proceedings against Shaukat Ali petitioner arising out of F. I. R. No. 688, dated 23-12-1984 Police Station People's Colony Faisalabad are ordered to be quashed.

M. B. A. Proceedings quashed.

(1) 1971 SCMR613 (2) PLD 1978SC193

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