This is an application under section 561-A of Cr. P. C. For the quashment of criminal proceedings initiated against the petitioner on a private complaint filed by respondent No. 2 under section 430, P. P. C. In the Court of Additional City Magistrate, Artillery Maidan, Karachi on 19th July, 1977.
The relevant facts are that the petitioner before me in this application is a senior Advocate of this Court, who resides at Bungalow No. 268 R. A. Lines, Karachi, out of which he had given a portion to the respondent No. 2 for the residence of his family as the respondent No. 2 had impleaded the petitioner to allow him to occupy a portion of the Bungalow as the wife of respondent No. 2 was suffering from some ailment. The dispute between the parties started when the supply of water and electricity for the premises of respondent No. 2 was alleged to be cut-off by the applicant. The applicant states that he has been suffering a great deal as the respondent No. 2 who had been given the premises on a temporary basis had failed to vacate the portion in his possession, and when he was required to do so he has initiated these proceedings in order to bring a pressure upon the applicant not to press for the demand of vacating the Bungalow.
2. On 15th March, 1977 the respondent No. 2 made an application under section 13 of Cantonment Rent Restriction Act, 1953 before the Rent Controller, Karachi Cantonment, requesting that the present applicant be directed to restore water, electricity and gas supply to the respondent No.
2. On the same day the Rent Controller passed an interim order directing Mr. K. S. Tallati, the applicant, before me, to restore the electricity, gas and water supply. The said proceedings before the Rent Controller are said to have been concluded, but no copy of the final order passed by the Rent Controller has been produced before me. On 21st May, 1977 the complainant Abdul Qadir, respondent No. 2 before me, obtained a direct electric connection from Karachi Electric Supply Corporation, and therefore, there was no more any dispute in respect of the same. But, according to the complainant the gas and water connection was not restored by the present applicant although he had promised to do so on 9th June, 1977 before the Rent Controller to provide water by means of plastic pipe, and the said undertaking was recorded by the Rent Controller. Without waiting for the orders of the Rent Controller and without having that case under section 13 of Cantonment Rent Restriction Act decided the present respondent No. 2 moved a direct complaint before the A. C. M. Artillery Maidan, Karachi under section 430, P. P. C. The complaint was filed on 19th Jnly, 1977, and it was sent to S. H.
0. Artillery Maidan, Police Station for holding enquiry under section 202, Cr. P. C. On receipt of the enquiry report the A. C. M. Concerned issued process against the present applicant under section 430, P. P. C. On 5th December, 1977 and the present proceedings are directed against the said process and applicant wants those proceedings to be quashed. I have heard Mr. S. A. Hasnain for the applicant, Mr. R. A. Qureshi for the respondent No. 2 and Mr. Noor Ahmed Noori for the State. Mr. S. A. Hasnain has contended that since there is a specific provision in the Cantonment Rent Restriction Act in respect of the stoppage of conveniences by the landlord, therefore, the provision of section 430, P. P. C. Should bel deemed to have been excluded. I am, however, not impressed with these arguments as the provisions of section 430 of P. P. C. Are not inconsistent with the provisions of Cantonment Rent Restriction Act, and the two provisions can co-exist together, and any party can make use of both the provisions at any time as far as the strict legal position is concerned. It is only the conviction which can take place only under one provision of law and it cannot take place under both the provisions of law. In State v. N. H. Puri (1) it was observed that section 10 'of Karachi Rent Restriction Act (which is in pari materia with section 13 of Cantonment Rent Restriction Act) had not repealed the provision of section 430 of P. P. C. And that the two statutes were not inconsistent with each other. Mr. Noor Ahmed Noori has pointed out that in 1962 two new subsections were added to section 10 of Karachi Rent Restriction Act, and therefore, State v. N. H. Puri is not the appropriate ruling. I do not find, however, that the amendments introduced in 1962 have really affected the force of State v. N. H. Puri and I am therefore, in respectful agreement with the views expressed therein by the learned Judge Mr. Justice Kaikaus.
I am, however, more impressed by the next argument of Mr. Hasnain, who was supported by Mr. Noor Ahmed Noori that Civil liability cannot be enforced through Criminal Courts. Reliance had been placed upon. Mahmood etc. v. The State (2) 1 find that the responden No. 2 had resorted to proceeding under section 13 of the Cantonment Rent Restriction Act before the Rent Controller, and I also find that in the complaint under section 430 itself there is a mention made 8 by complainant that on 9th June, 1977 the Rent Controller had noted an undertaking given by Mr. Tallati that he will provide water by means of
(1) PLD 1959 Kar. 392 (2) 1974 P Cr. L J Note 101 at p. 63 #TBS (1) 1979 SCMR 94 #TBE plastic pipe. In stead of the complainant pursuing his remedy before the Controller, he filed a complaint before the Magistrate. If the complainant had considered an application under section 13 before the Rent Controller as an appropriate remedy for his grievances in respect of lack of supply of gas and water and he had also obtained an interim order from the Rent Controller on 15th March, 1977, and then, again obtained an undertaking from the applicant Mr. K. S. Tallati in the Court of the same Rent Controller on 9th June, 1977 for provision of water by means of plastic pipe, therefore, it was hardly open to the complainant/respondent No. 2 to by pass the Rent Control proceedings which were pending, and instead of that resort to a criminal process of a direct complaint under section 430, P. P. C. Since, the complainant was at that time aggrieved only against the breac of undertaking given by accused/applicant Mr. Tallati on 9th June, 1977 before the Controller, then it was only meet and proper that the complainant/respondent No. 2 should have moved the Rent Controller for taking action against the accused/applicant for the breach of the undertaking. Taking resort to a different forum than the one before whom the undertaking had been given clearly leads one to the conclusion that the criminal proceedings were aimed to browbeating the applicant and to pressurize him into submission. It is obvious that that authority before whom an undertaking had been given was more competent to decide whether a breach of the undertaking had really taken place or not. The criminal proceedings, therefore, do not seem to have been resorted to in good faith, and are therefore, an abuse of the process of the Court. It would have been a different matter if the complainant/respondent No. 2 had resorted to the complaint under section 430, P. P. C. In the very first instance. But, the complainant having initiated the proceedings under section 13 of Cantonment Rent Restriction Act on 15th March, 1977 was himself clearly of the view that he could obtain the appropriate relief under the Rent proceedings, and he had in fact obtained the relief twice, and there was, therefore, no occasion or justification to start a fresh criminal proceeding and that too without assigning reasons as to why he did not consider the proceedings before the Rent Controller adequate. More particularly when the Rent Controll proceedings were pending on 19th July, 1977 and December, 1977.
Mr. R. A. Qureshi, wanted me to dismiss this application on the ground that the applicant had failed to move an application under sec- tion 249-A, Cr. P. C. Before the trial Court. He relies upon Khushi Mohammad v. The State (1) where two Judges of the Supreme Court had held that if the applicant had not resorted to section 249-A of Cr. P. C. Then he should not be allowed relief under section 561-A of Cr. P. C. But, Mr. Noor Ahmed Noori has produced before me a copy of an unreported order of the Supreme Court in Crl. P. S. L. A. K. 53 of 1978 where three Judges of the Supreme Court while admitting the petition of Bashir. Ahmed have observed that the view in Khushi Mohammad's case requires further examination. This being the position it would be inappropriate at this stage to rely upon Khushi Mohammad v. The State and to dismiss this petition on that ground particularly, when 1 am convinced that the resort to criminal proceedings was not in good faith.
In these circumstances the criminal proceedings pending under section 430, P. P. C. Against the applicant in the Court of A. C. M. No.
13. Karachi are hereby quashed.