1. ' MRS. QAISER IQBAL, J.--- Applicant Salman Khalil being aggrieved and dissatisfied with the administrative order passed by XV Judicial Magistrate, Karachi East on a report under section 173, Cr.P.C. Submitted by Sub-Inspector Salimuddin of Police Station Ferozabad, Karachi, whereby the report was approved in 'C' Class and case was disposed of.
2. ' The facts leading to the application are that on 8-9-2006 the applicant lodged written report which is reproduced herein below in extenso: "To, ' The Station House Officer, Police Station, Ferozabad, Karachi.
3. Subject: Registration of F.I.R. Against accused Mr. Maqbool Hasan son of Abdul Hasan.
4. Dear Sir, ' I reside at House No,53, Faran Cooperative Housing Society, Karachi. Maqbool Hasan son of Abdul Hasan resident of RL/27 and RL/28 Rohilkhand Cooperative Housing Society Limited, Karachi approached me at my office "Touchme House", 41/I/H, Razi Road, Block 6 PECHS, Karachi and made me to believe that he was appointed as administrator by (1) Almas Fatima widow of Saleem Ali alleged owner of plot No,RL/25, and (2) Mr. Asif Ali son of S.A. Ghaffar, the alleged owner of plot No,RL/26 each measuring 597 square yards, situated in Block 7/8, Maqbool Cooperative Housing Society, Karachi and (3) Ashraf Nawab son of Sher Baz Nawabi alleged owner of plot No,RL/27, (4)
5. Mrs. Iffat Hassan wife of Maqbool Hassan alleged owner of plot No,RL/28 each plot measuring 597 square yards situated at Block 7/8 Rohilkhand Cooperative Housing Society, Karachi and (5) Sabih Hasan son of Maqbool Hasan, the alleged owner of plot No,RL/25, A/RL/29, measuring 597 square yards, situated in Maqbool Cooperative Society Ltd. And further represented and assured to me that the alleged owner of the aforesaid plots had authorized him to sell, grant and transfer the said plots. The said Maqbool Hassan, fraudulently dishonestly induced me to purchase the said property/plots and assured me the said property/plots were free from all encumbrances, charges etc. I believed his aforesaid representation and assurance as true and by reposing trust on him signed agreement to sell dated 9-10-2002 with him at my office, in respect of above said five plots for a total sale consideration of Rs,31,500,000 (Rupees thirty one million five hundred thousand only). Maqbool Hassan knew from the very beginning that the representation, which he was making to me, was false. At the time of signing of said agreement to sell, he intentionally induced me and obtained advance amount of Rs,3,000,000 (Rupees Three Million only) vide cheque No,5751502 dated 9-10-2002 drawn on Muslim Commercial Bank Limited Nursery Branch, Karachi, which Maqbool Hassan acknowledged by issuing a separate receipt of the same i.e. 9-10-2002. The balance sale consideration was to be paid by me only after all the formalities for transfer, registration, mutation etc. Etc. Were completed as per agreement. Thereafter, Maqbool Hassan kept me on false promises and avoided to fulfil his obligation under the said agreement to sell dated 9-10-2002. I got published public notices in compliance of clause 11 of the sale agreement in the daily Jang and daily Awam dated 20-9-2003. Mr. Asif Ali and legal heir of late Saleem Ali, the alleged owner of Plot Nos.RL/25 and RL/26, through their advocate Mr. S. Mehmood-ul-Hassan's letter dated 2-10-2003 deified that they had given any authority to Maqbool Hassan to act on their behalf and dispose of the said plot. Immediately thereafter, I brought these facts into the knowledge of Maqbool Hassan, who again assured me to complete the said transaction, after getting power of attorneys from the respective owners of the plots. He kept me on false promises on one pretext to the other for gaining time with mala fide intention. After passing of sufficient time, Maqbool Hasan did not fulfil his promise. I wrote letter to Messrs Karachi Cooperative Housing Societies Union Limited, and M/s Maqbool Cooperative Housing Society Limited and Rohilkhand Cooperative Housing Society Limited and collected information from them, whereby I came to know that M/s Maqbool Cooperative Housing Society Limited had surrendered the possession of said plots Nos.RL/25 and RL/26 to M/s Karachi Cooperative Housing Society Limited in November, 1983 through registered deed of surrender, in compliance of an award passed by an arbitrator in ABN Case No,120/1980. Mst. Almas Fatima and Mr. Asif Ali who knew above said facts, by misrepresentation of definite facts got the said plot transferred on his/her individual name from Maqbool Cooperative Housing Society Limited which were subsequently cancelled. Despite knowing the above said facts at the very outset, accused Maqbool Hassan fraudulently/dishonestly induced me to purchase the above said plots and by false representation obtained an advance amount of Rs,3,000,000 not meaning to perform the obligation to complete the sale transaction as per agreement, dated 9-10-2002 but in fact he had taken the advance money by deception and as such he has committed offence of cheating/fraud. Maqbool Hasan had received from me Rs,3,000,000 for its payment proportionately to the above name alleged owners of five (5) plots as advance money. Now it transpired that he committed criminal breach of trust and dishonestly misappropriated the said amount of Rs,3,000,000. The legal action be taken against Maqbool Hasan.
6. ' Karachi, dated 8 September, 2006.
7. ' Sincerely yours (Sd.) in English (Salman Khalil) son of Khalil Ahmed"
8. ' On the basis of above report A.S-I. Shahbaz Ali incorporated the same in F.I.R. No,681/2006 registered against respondent No,2 under sections 420, 406, P.P.C. On the administrative side learned Judicial Magistrate proceeded to pass the impugned order.
9. ' Mr. Mehmood A. Qureshi, learned counsel for the applicant has contended that the impugned order is illegal, passed without legal authority, therefore, the same is not maintainable in terms of section 561A, Cr.P.C. In support of the above contention, reliance is placed on the following case- law:--
(1) Sufi Abdul Qadeir v. The State and others 2000 PCr.LJ 520,
(2) Farooq Sumor and others v. The State and others 2005 PCr.LJ 1023.
10. ' It is next urged that the learned Judicial Magistrate has failed to exercise power, did not adhere to the report under section 173, Cr.P:C., has not appreciated the documents along with the ocular account of the witnesses for the fraudulent and dishonest acts of the respondent No,2 in connectidn with the purchase of five plots free from all encumbrances and charges, the applicant believed his representation and assurance as true and reposing trust on him signed an agreement to sell of five plots for a total sale consideration of Rs,31,500,000 through cheque, the applicant believed the assurances of respondent No,2 paid substantial amount in US Dollars. It is urged that the learned Judicial Magistrate had not taken into consideration the statement of P.W. Muhammad Yousaf and Muhammad Asif, who have fully corroborated the facts of the case, passed the stereotype order without examining the record caused for interference at this stage. In support of the above contentions, reliance is placed on the following case-law:--
(1) Tahir-ul-Islam v. The State 1984 PCr.LJ 274 (Lahore) (2)
11. ' Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCM R 1192.
12. ' Mr. Agha Zafir, learned counsel for the State has not supported the impugned order, contended that it is not based upon the appreciation of the evidence placed by the Investigating Office before the Judicial Magistrate.
13. ' I have considered the arguments advanced at bar.
14. It is settled principle of law that institution of civil and criminal proceedings simultaneously are not barred because each proceedings are independent of other and is intended for separate purpose as laid down in the case of Tahir-ul-Islam (supra) the criminal proceedings with respect to the same subject matter are ex-facie mala fide has no force, suffice to say that there is no bar in law to simultaneously initiate civil and criminal actions, the defrauded person has two fold remedies for the redress of his grievance, first through criminal proceedings, and secondly, through a civil suit. It is further held that the case set out in the F.I.R. Is not based on the said agreement simpliciter but on the allegation that respondent has been defrauded, the F.I.R. Prima facie discloses a case against the petitioner, therefore, the prosecution cannot be stifled by quashment simply on the basis of the stand taken by respondent in written statement in the civil suit.
15. ' This brings me to a recent authority in the case of Muhammad Daiem Shattari v. The State 2007 YLR 2038, the emphasis laid is that a judicial officer even acting on administrative side not to act at the whims of a particular party, required to take into consideration the entire evidence while proceedings on report under section 173, Cr.P.C.
16. ' The impugned order on the face of the record requires interference in view of the dictum laid down in the cage of Muhammad Sharif and 8 others v. The State 1997 SCM R 304 that due to erosion of positive values in social set-up, loss of moral direction, development of culture of corruption, ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, it would be in the interest of justice that ratio in Arif Ali Khan's case (supra) which tends to counter the deterioration pervading in the society at this juncture, is followed and the order passed by a subordinate Court, which clearly amounts to an abuse of process of the Court, High Court remains empowered to rectify injustice.
17. For the reasons discussed above, the impugned order stands set aside, case is remanded back to the Judicial Magistrate with the direction to reappraise the case in true perspective and decide all relevant features of the case, in consonance with record after due notice to the parties. These are the reasons for the short order, dated 24-8-2007 whereby Criminal Miscellaneous Application No,35 of 2007 was allowed.