1. ' This is an application under section 561-A of Cr. P. C. Seeking quashment of complaint filed by Asif Sultan against Suleman Jaffer, Hamid Jaffer and Nasir Jaffer under section 342/347/454/380/108, P.
2. P. C. On 2nd October, 1973. After recording the statement of complainant and P. Ws. Wasif Sultan and Mohyuddin under section 200 of Cr. P. C. The A. C. M. Karachi took cognizance under section 454/380/34 of P. P. C.
3. ' Some of the relevant facts in this respect are that the complainant and the applicants were the directors of National Carpets Industries Ltd. In 1972-73 due to the labour trouble the directors decided to remove the carpets from the factory to different premises including the premises of the firm Markaze Qaleen which was owned by the sons of the complainant. Thereafter, some disputes arose between the applicants and the complainant and their side filed Suit No, 151/73 for injunction damage accounts against the complainant in April 1973. In para one of the plaint it was alleged that some of stock of carpets of National Carpet Industries was transferred to the premises of Markaze Qaleen after Asif Sultan had represented to the plaintiff that such transfer would minimize labour trouble, but the said suit was however compromised on 16th June, 1973 and a consent decree was passed and Asif Sultan agreed to account for all carpets and hand over belivery of all existing carpets belonging to National Carpet Industries and it was also agreed that thorough audit of accounts had to take place and any dispute was to be referred to the arbitration of one Mr. Foldman. In spite of the consent decree still some disputes continued as Asif Sultan insisted on stock taking while Suleman Jaffer and his side insisted on delivery of carpets to National Carpet Industries by Asif Sultan, but he did not agree to do the same without audit and accounting and he asked Mr. Foldman to work as arbitrator. Consequently on 8th September, 1973 Nasir Jaffar filed an F. I. R. Under section 420/406 against Mr. Asif Sultan, Wasif Sultan and Iqbal alleging that they had illegally removed some carpets belonging to National Carpet Industries and despatched the same in the name of their firm Markaze Qaleen. On the basis of the said F. I. R. The police authorities of Ferozabad police station arrested Asif Sultan and his son Wasif Sultan and the police took Wasif Sultan with them to the premises of Markaze Qaleen and broke open the lock and took away the carpets. Nasir Jaffer was with the police at that time. This happened between 9th and 12th September, 1973.
4. ' After Mr. Asif Sultan and his son Wasif were bailed out the applicants started compromise negotiations with Asif Sultan and they continued till 25th September, 1973, when Mr. Wasif Sultan was compelled to approach the police to bring back the carpets to the police station which Wasif Sultan considered to have been stolen from his premises of Markaze Qaleen. Compromise talks failed and thereafter on 2nd October, 1973 the complaint was filed and process was issued under section 454/380/34, P. P. C.
5. ' Mr. Hayat Junejo argued that the complaint was mala fide and was only a counterblast to the F. I.
6. R. Of Nasir Jaffer. In any case the applicants could not be said to have committed any trespass or theft as it was the police of Ferozabad which had recovered the carpets from the premises of Markaze Qaleen in pursuance of F. I. R. Of Nasir Jaffer made on 8th September, 1973. Mr. Hayat Junejo states that paras 21 and 22 of the complaint itself show that the action complained of was taken by the police and not by the applicants individually. This is a justified contention. I also find that statement of Wasif Sultan recorded under section 200, Cr. P. C. Is very clear where he has stated "the police took him to Markaze Qaleen with Nasir Jaffer and Hamid Jaffer and there they broke open the lock against my will and in the same way broke open the lock of the godown. The police brought me back to the police station, and thereafter, it took away the carpets and my raw material from my company and its godown in trucks". This statement of Wasif Sultan makes it clear that it was the police which broke open the lock and removed the carpets and not the applicants acting on their own. Moreover, it is admitted position that the Police had acted in pursuance of the F. I. R. Of Nasir Jaffer, and therefore, this was an action in purported exercise of authority of the police and even if the action of the police was not justified in law the applicants could not be burdened with any responsibility under sections 454 and 380, P. P. C. It is significant that the complainant had not filed the complaint against any of the police officers, therefore. Thereby he has conceded that the police had the authority to take the action complained of. Even P. W.
7. Ghulam Mohyuddin has deposed under section 200 of Cr. P. C. That it was the police, which broke open the lock and removed the carpets. Mr. Hayat Junejo has shown me an application moved by Asif Sultan on 4th October, 1973 before S. D. M. Cantt. Karachi where he prayed that the property seized by police in case of F. I. R. 370/73, which is lying at Ferozabad Police Station may be restored to him. This application was dismissed. But it clearly shows that the action of removal of goods had been taken by the police and the goods were with them and not with the applicants. Mr. Muzaffar H.
8. Shah has opposed the quashment and has argued that the complaint was justified but I fail to see any justification.
9. In the light of the above circumstances I am convinced that the complaint was completely unjustified and was a counter move to F. I. R. Of Nasir Jaffer and that the action of breaking open the lock and removal of carpets for which process was issued under sections 454 and 380, P. P. C.
10. Was of the police and not of the applicants and the applicants could not be held guilty for the same. Such a complaint was an abuse of the process of the Court and allowing the continuation of the same would be a sheer harassm ent. I am in fact surprised as to how a process was issued in the presence of clear statements of Wasif Sultan and Ghulam Mohyuddin that it was police which had broken the lock and removed the carpets. Still more surprising is that on 8th November, 1973 the A. C. M., Karachi refused to discharge the accused under section 253 (2) of Cr. P. C.
11. ' I would, therefore, quash the proceedings pending against the applicants in the Trial Court under section 454/380/34, P. P. C. Arising out of private complaint of M. Asif Sultan made under section 342/347/454/380/ 109, P. P. C. Dated 2nd October, 1979.