' The applicant seeks to impugn the proceedings instituted against him by way of a direct complaint, for offences under section 420i406, P. P. C., in the Court of the Mukhtiarkar and First Class Magistrate, Sukkur. The learned Magistrate, had, however, taken the cognizance of the offence under section 420, P. P, C. Only, and had issued boilable warrants against the applicant.
2. The facts of the case, briefly, are that under the provisions of Martial Law Regulations 84, 89 and 91 the applicant, as per the revised claim, had repurchased 2 acres and 39 ghuntas, bearing survey number 162 in Deh Garhi Halim, Taluka Sukkur, from the surrendered land, belonging to his family.
3. The applicant had obtained orders from the Deputy Commissioner and A. S. C. (L), Sukkur, as well as, Deputy Custodian (E. P.) Khairpur Division, at Sukkur, in support of his title, which proved the ownership of survey No, 162 in his favour. After being satisfied that he had a clear title, he had sold the land in question, to the Respondent No, 2 on 12th March 1974, for a sum of Rs, 5,000 and had received Rs, 2,125 as an initial advance.
4. In the meantime, one Arbab, filed an appeal against the order of the Deputy Custodian, who heard the matter, in absence of the applicant. And passed the ex parte order, in favour of Arbab on 29th March 1974.
5. Since the order of the custodian was without affording an opportunity of hearing to the applicant, a Constitution Petition No, 403/74" was filed in the High Court, which is still pending disposal and the following order dated 21st May 1975 was passed :- "The contention raised is that the impugned order resulting in the cancellation of the permanent settlement of 'the petitioner, was passed by the learned Custodian without notice to the petitioners, which violated the principles of natural justice and proviso to section 43 (4) of the Act XII of 1957.
The contention raised requires consideration. Admit. Notice."
6. By this time, the impugned direct-complaint was filed on 7th January 1977, alleging, therein, that the applicant, who had no clear title, in respect of the ownership of the land, in question, which was in dispute, had sold the land and had thereby cheated the Respondent No, 2.
7. I have heard the learned counsel appearing for the parties and with their assistance, I have gone through the application and the documents annexed thereto.
8. The learned counsel for the applicant has contended that on 12th March 1974, when the land comprising of the survey number was sold, the applicant had a clear title, and the sale was bona fide. He has also relied upon the two orders passed in favour of the applicant, by the Deputy Commissioner A. S. C. (L), Sukkur and the Deputy Custodian (E. P.), Khairpur Division at Sukkur. He has further argued that. Appellant Arbab. Had file the appeal, behind his back, of which he was given no notice, and the ex parte order was passed. Without affording him the opportunity of hearing, therefore, the order was against the principles of natural justice and was liable to be set aside. His main contention, therefore, is that no criminal offence is indicated from the facts, disclosed in the complaint. It is further pointed out that the conduct of the applicant, clearly establishes his bona fides, when he had filed the Constitution Petition, against the ex parte order of the Custodian, which is pending in this Court.
9. Mr. Niaz Ahmed Khan appearing for the State has supported the application and has candidly stated that, no criminal offence is indicated, in this case.
10. On the other hand Mr. Maqbool Ahmed Khan has argued that when the appeal was filed before the Custodian, the applicant should have had the knowledge and was expected to have the knowledge of the date of the hearing of the appeal. He has however not produced any documents to show that the applicant had the knowledge or the notice of the appeal, which he had wilfully declined to attend. Such a presumption of knowledge is too farfetched and cannot be attributed to the applicant, There is no force in the contention of Mr. Maqbool Ahmed, I1 On consideration of the complaint and the orders referred to hereinabove, and the record of the case, I am of the view that no criminal offence is indicated. The application is accepted and the proceedings in A the case, entitled, "Wall Mohammad v. Shahid-un-Nabi Khan and others, under section 420, P. P. C." pending in the Court of Mukhtiarkar and First Class Magistrate Sukkur are hereby quashed.