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Criminal Reference No. 160 of 1962, decided on 23rd October 1962.
Complaint dragging on for 13 years without proceeding beyond issue of process‑Abuse of process of Court‑Proceedings quashed‑Criminal Procedure Code (V of 1898), S.561‑A.
Maulana Syed Muhammad Razi v. Maulana Shabihul Hasnain and another P L D 1961 Kar. 220 ; Muhammad Faroog and another, Rafi Hassan Khan P L D 1960 Kar. 42 and State v. Shakoor Hashim Patel and others P L D 1960 Kar. 926 ref.
A. M. Khoja for Applicant.
Fasihuddin for Respopdent No. 1.
Ihsanul Haq for Respondent No. 2.
Dates of hearing : 22nd and 23rd October, 1962.
In Criminal Reference No. 160/62, I issued a notice to the parties on 30‑7‑1962 and made the following remarks
"Under the circumstances mentioned above I think it desirable to consider whether this is a fit ease where the proceedings '' should be quashed. Issue notice to the complainant Syed Amanat Ali and accused Gul Muhammad.
I have heard the learned Advocates for the parties as well as Mr. Khoja for the State. The undisputed facts may briefly be summarised as under
(i) Complaint under section 420 was filed on 14‑10‑49 by the complaint Shamim Ahmad son of Shamshuddin against accused Gul Muhammad. Process was issued but the accused was dis charged under section 259, Cr. P. C. on 14‑10‑1949 as the complainant was absent.
(ii) On 28‑12‑49 again the complaint was repeated by Shamim Ahmed. Shamim Ahmed remained absent again and the accused was discharged on 13‑7‑1951,
(iii) Shamim Ahmed again filed a fresh complaint constituting the same facts on 14‑7‑1953. 116 again remained absent on 13‑8‑1955 when the accused was again discharged,
(iv) Shamim Ahmed again filed a fresh complaint on the same facts. The copy of the complaint is not available. On 14‑4‑1956 the accused was again discharged as the complainant remained absent.
(v) On 23‑2‑1960 nearly, after A years Amanat Ali. Describing himself as an attorney for. Shamshuddin bled afresh .complaint on the same allegations. Against the accused. The Magistrate issued bailable, warrants against; the accused. It was in con nection with the issue of the process of bailable warrants, and subsequent order of the Magistrate dispensing with the personal attendance of the accused that Reference‑ No: 1,6.U/62 carpe ;to
be made to this ‑Court wherein. I .passed the order, dated
30‑7‑62 quoted above.
2. The complaint has not. been, proceeded at ,all after the process had been issued. It is now nearly 13 years that the complaint has remained on the file of the Court from time to time without anything being done after the process had been issued. It is surprising to find that sometimes the complaint has been on the file of, the Court for nearly 2 years without proceeding before the accused was discharged by virtue: of section 259, Cr.P.C. except the first discharge on 10-12-1949. Till 30‑7‑1962 the complaint had not been proceeded with. No evidence, whatsoever, has been recorded so far.
3. The last discharge order under section 259; Cr. P. C, was on 14‑4‑1956. The complaint was again filed nearly after 4 years on 23‑2‑60 by Amanat Ali ; who called himself as attorney of Shamshuddin. Shamim Ahmed son of Shamshuddin had also filed his complaint describing himself as attorney; for his father. It was Shamshuddin in fact who was alleged to have been cheated.
4. The allegations about the cheating are that the accused represented to Shamshuddin that Plot No. K. 14, Mironoka, Shershah Road, was his and on that representation, on 12‑1‑1949 Shamshuddin agreed to purchase the plot for Rs. 50,000 from the accused and on the same day gave the accused cheque No. F. 00976 dated 12‑1‑1949 as, part payment towards the contract. The sale‑deed was to be executed and registered sorrier time after. Subsequently, Shamshuddin found out that the accused had no saleable' title in the property. The. accused also brought a Civil Suit (No. t 20/60) in the High Court for the specific performance of the agreement praying that Shamshuddin be asked to complete the transaction. Mr. Justice Inamullah held that the plaintiff (accused) did not have a marketable title, and, therefore, he was not entitled to a decree for specific performance.
5. I do not want to discuss the merits of the complaint. I; however, cannot fail to notice that in transactions of immovable property where Record of Rights or City Survey record is main tained by Municipalities and Revenue Authorities the doctrine of caveat emplor applies. The burden is on the purchaser to make diligent inquiries about the nature of the title over the property in question before he contracts to get the transfer of the property in his favour. It would be a question whether Shamshuddin did make any inquiries before he entered into an agreement of sale on 12‑1‑1949 with the accused. This, however, would be a question affecting the merits of the case.
6. The complaint has dragged on, for nearly 13 years and has not crossed the stage beyond the issue of process during all these years. Allowing the proceedings to continue will amount to abuse of process in the Court. I am, therefore, of the clear view that the long delay that has occurred is sufficient for ordering the quashment of the proceedings in Court. The proceedings are hereby quashed and the accused is discharged.
7. The learned counsel for the complainant relied on certain rulings, which are not relevant, namely, Maulana Syed Muhammad Razi v. Maulana Shabihul Hasnain and another (P L D 1961 Kar. 220) and Muhammad Farooq and another v. Rais Hassan Khan (P L D 1960 Kar. 42). The first ruling lays down that where the complaint discloses the offence the proceedings could not be quashed. And the second ruling shows that the proceedings need not be quashed on the grrn1nd that the matter is of civil nature unless the evidence has been recorded to establish that this is so. The learned counsel for the accused relied on The State v. Shakoor Hasham Patel and others (P L D 1960 Kar. 926). In this case the matter was pending for 6 months without pro ceedings and Justice Khamisani accepted this as one of the grounds for ordering quashment of the proceedings.
K. B. A .
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