' This is an application under section 561-A, Cr. P. C. For the abashment of a direct Complaint Case No, 49/79 (Muhammad Munir Hussain Butt v. Hafizullah and others) under section 420/34, P. P. C.
Pending in the Court of S. D. M. City, Karachi.
2. The facts of the case are that the three applicants are brothers inter se. They are agriculturists by profession and reside at Lahore. They were the tenants on a piece of land, comprising of 40 kanals, situated at Mahmood Booti, in the vicinity of Lahore. The land belonged to one Khawaja Muhammad Ashraf, who was unhappy with the applicants and wanted to eject them, probably because, he wanted to sell the land with vacant possession. He filed an application before the Assistant Commissioner, Lahore, against applicant No, 2 (Karamatullah); but it was dismissed on 23-8-1976. He, then approached the Martial Law Authorities at Lahore, for his ejectment. In consequence, applicant No, 2 was called and interrogated. Respondent Karamatullah filed a Constitution Petition No, 1963/77 in the High Court at Lahore, which was disposed of, on 19-10-1977 by the following order: "The learned Advocate-General states that the respondents are not forcing the ejectment and they have no intentions in doing so. The respondents are restrained from ejecting the petitioners, except in accordance with the Civil Law of the land."
3. On 14-5-1978, Khawaja Muhammad Ashraf, sold the land to Mian Kabir Ahmad, who on 21-5-1978, trespassed into and forcibly occupied the land, with the help of about 25-30 persons. Chaudhry Zulfiqar Ali, father of the applicants, lodged a report (Annex. B). The F. I. R. Was drawn up for offences under section 149/148/447/336, P. P. C. The case was finally registered, under section 447, P. P. C. Only, which is still pending investigation for about 11 months and no final charge-sheet has yet been submitted in the Court.
4. On 21-5-1978 Mian Abdul Kabir also filed a Civil Suit (Annex. C) in the Court of Civil Judge, Lahore for permanent injunction, and restraining the applicants herein, from interfering with or disturbing in his possession of the land. Applicant No, 2 (Karamatullah) had approached the Assistant Commissioner/Collector, Lahore, with a petition under 115, M. L. R., for restoration of the possession of the land (Annex. D). In addition, applicant No, 2 also filed a Civil Suit, under section 9 of the Specific Relief Act in which Mian Abdul Kabir is the main defendant, for recovery of the possession of the land (Annexure
5. Mian Zamir Ahmad, who is defendant No, 13, in the Suit (Annex. E) is stated to be a relative of Mian Abdul Kabir, Munir Hussain Butt, complainant in the instant case is said to be his employee at Karachi.
6. On 22-1-1979, a direct complaint (Annex. F) was filed in the Court of S. D. M./A. C. City, at Karachi, for offences under sections 420/406/34, P. P. C. Statement under section 200, Cr. P. C. Of the complainant Munir Hussain was recorded, on the same day (22-1-1979). By the order of the Magistrate, the complaint was forwarded on the same day to the S. H.
0., Chakiwara, for inquiry and report. A. S. I. P. Hashim Khan received the papers on the same day and recorded the statements of P. Ws. Muhammad Bashir Bhatti and Samiullah. On 23-1-1979, the A. S. I. P., submitted his report in the Court that offences under section 420/406/34, P. P. C, were indicated. The learned Magistrate perused the complaint and the police report and passed an order dated 24-1-1979, for taking cognizance of offences under section 420/34, P. P. C. He directed the registration of the case and issue of bailable warrants against the accused, with no amount mentioned therein.
7. The Respondent No, 1/complainant is originally, resident of Lahore. For the last 2 years, he is stated to be in Karachi, in connection with his business. The applicants, being also residents of Lahore, are to be well known to him, for quite a long time.
8. On 29-12-1978, the applicants are alleged to have come to Karachi for taking delivery of a car and contacted the complainant at Chakiwara, Karachi. On inquiry, by the respondent No, 1, the applicants informed him that they had come to take the delivery of a Datsun Sunny reconditioned car, from the Customs House, Karachi.
9, On the following day (30-124970, the applicants are alleged to have gone to respondent No, 1 and asked him for short term loan of Rs, 5,000 for payment of taxes etc. For the car, which, first, he was not ready to give; but on persuasions of the applicants, he paid them the amount, on receiving the assurance, that after selling the car, they would pay back the money.
10. Again on 2-1-1979 the applicants are alleged to have gone to respondent No, 1 and informed him that they had taken the delivery of the car and were making arrangements to sale it. They offered to sell him the car, at a concessional rate and requested him to see the car. Respondent No, 1 agreed. He took his friends P. Ws. Muhammad Bashir Bhatti and Samiullah and saw the car at Chakiwara.
11. After a lengthy bargaining, it was agreed that the respondent No, 1 would buy the car for Rs, 40,000. The appiicants were to be paid, is advance Rs, 20,000, which included Rs, 5,000, already*paid to them. Whereas, balance of Rs, 20,000 was to be paid to them, on completion of the documents, of sale and transfer of the car.
12. The respondent No, 1 did not have ready cash with him. He therefore, contacted his friend Haroon son of Ahmad and obtained the amount of Rs, 15,000 from him, which was paid to the applicants at the Tram 'Patta' Chakiwara, near the house of Haroon in presence of the above- mentioned two witnesses.
13. On the next day, the applicants are alleged to have brought all the aforementioned documents of the car, and delivered the transfer letters etc. After which the respondent No, 1 paid the balance amount of Rs, 20,000. After only an hour of the deal, the applicant requested respondent No, 1 for the use of the car, as the same was required for verification etc. As well as, it would also facilitate them to move about in the city, due to transport problem. The car was alleged to have been given to the applicants as a trust.
14. On the next day, the applicants did not turn up to return the car. Respondent No, 1 went to see them, but to his surprise, the applicants had disappeared with the car. The respondent No, 1 went after them to Lahore, where he met them and they totally denied any such transaction. He returned to Karachi and went to report the matter at Police Station, Chakiwara, Karachi, but the police refused to register the case. Hence the direct complaint was filed.
15. I have heard, at great length, the learned counsel for the applicants and the respondent, as well as, Mr. Saeed Ghori for the State who has supported the application for abashment of the proceedings.
16. On perusal of the facts narrated in the statement of respondent No, 1 recorded under section 200, Cr. P. C., it is found, that he had mentioned the date as 27-12-1978, when all the three applicants, had met him and had demanded a loan of Rs, 5,000. On that day, the applicant No, 1 was present at Lahore, before the Deputy Commissioner, where his statement was recorded in the case of Karamatullah v. Khawaja Ashraf Ahmad and others. The Photostat of the certified copy of the statement, recorded by the Deputy Commissioner has been filed. It is submitted, by the learned counsel, for the applicants that the remaining two applicants were also present there. Since the date 27-12-78 was very material, it was found very necessary to call for the R. & P. Of case, from the trial Court of check from the original and ascertain, if the certified copy, filed with this application (Annex. G), was correct, the R. & P. Of the case was ordered to be sent for, and the matter was adjourned to 9-4-1979. When the matter came up for hearing, this morning, the learned counsel, Mr. Waheedur Rehman made a very serious grievance that the date "27" had been tampered with and was corrected to read as-"29". He further submitted that he had gone to city Court on 8-4-1979 at about 2 p. m. And found that the file of the case was lying on the desk of the 'Peshkar' of the Court. He further submitted that he had visited the city Court, to ensure that the date "27", in the statement of the complainant was not tampered with. In addition to his verbal submissions, he has also filed a personal affidavit, in support of his oral contention. In presence of all the three learned counsel, I had myself carefully examined and found that the figure '7' had been overwritten to read as 9. I further found that the cover of the city Court case, showed the date of the hearing, as 9-4- 1979, justifying, why the Peshkar had the case file, on his desk on 8-4-1979. I further found that the case diary, did not speak of 9-4-79, as the date for hearing of the case. The last date of hearing was fixed on 18-3-1979, and the next date of hearing was not mentioned. This gives rise to an inference that the case was on the table of the Peshkar on 8-4-79, with some ulterior motive. On checking up of the documents and the original record and proceedings of the case, I find, there is great force in the contentions of the learned counsel for the applicants, who has sworn his personal affidavit, which persuades me to believe that everything is not as straight, as is alleged in the complaint.
17. The oral allegations made in the complaint in respect of the advances, for the purchase of the car are not supported by any documents, as is usually done in such cases. There is nothing on the record to show that a Datsun Sunny car had arrived in Karachi, for which the applicants had to pay customs duty to take its delivery. The arrival and stay of the applicants in Karachi, is nowhere shown and proved. A mere mention of Chakiwara is made, as meeting places of the parties.
Chakiwara has been, specially mentioned, probably in order to fit in, the address of Haroon, who is admittedly, a friend of the respondent No,
1. The remaining two witnesses Muhammad Bashir Bhatti and Samiullah, are residents of New Saeedabad and are admittedly close friends of respondent No,
1. They are shown to be with respondent No, 1 continuously for 3.4 days, till finalisation of the alleged transaction for the sale of car.
18. There is only a word of the respondent No,. 1 against the word of the applicants. The background et' the case, clearly indicates that there are litigations between the applicants and Mian Abdul Kabir. Presence of applicant No, 2 Karamatullah, is established, by his statement, to be at Lahore, on 27-12.1978 and the other two respondents, who are his real brothers, are expected to be with him, perticularly, when there was deep routed hostility between them and Mian Kabir Ahmad.
19. The haste with which the direct complaint case was proceeded, has created a doubt, as ordinarily, such cases take months in the Magisterial Court to get ripe for the issue of the process.
20. Normally the inherent jurisdiction should not be invoked, becausej inherent powers are preserved in extraordinary cases in the interest of justice. A To find an 'abuse' it would be necessary to see in the proceedings, a perversion of the purpose of the law, such as to cause harassment to an innocent party, or where the machinery of justice is engaged in an operation, from which no result, in furtherance of justice, can accrue. This is a case in B which the complaint, on the face of it, prima fade does not make out a criminal offence. Though the complaint is filed under section 420/406/34 P. P. C., but the learned Magistrate was satisfied that the evidence recorded in P E indicated offences only under section 420/34, P. P. C. The perusal of the complaint and statements of witness do not make out a case under section 420, P. P. C. As none of the applicants had by deceitful means, fraudulently or dishonestly induced respondent No, 1 to advance the loan. At the most, it is a civil liability for which the remedy is to approach th Civil Court. The forum of Criminal Court was selected, in order to harass the applicants. The process of the Court was therefore being abused, not t advance the interest of justice, but to subject the applicants to unnecessary harassm ent.
21. In the result, the proceedings in the Case No, 49/79 Muha Munir Hussain Butt v. Hafizullah and others, under section 420/34, P. P. C. Pending in the Court of A. C/D. M., City Karachi are quashed.