This application under section 561-A, Cr. P. C. Is filed seeking quashment of the criminal case, Mohammad Zakaria v. Ghulam Rasool and others under section 147/448/342/323, P. P. C., pending in the Court of A. C. M., Artillery Maidan, Karachi.
2. The brief facts of the prosecution case are that the applicant and the respondent No. 1 entered into an agreement on 9th May, 1969 for partnership in business which was to be carried out in Shop No. 109 of Saddar Cooperative Market, Saddar, Karachi. This agreement of 9th May, 1969. Was later superseded by another agreement on 16th May, 1969 whereby the respondent No. 1 irrespective of profits or loss in the business was to get a sum of Rs. 250 per month from the applicant and he was accordingly paid Rs. 3,000, in cash by the applicant as an advance amount of this payment. The disputes if any were to be referred to arbitration. This arrangement continued till July, 1977 when the respondent No. 1 asked the applicant to hand over him the vacant possession of the Shop No. 109 which was declined by the applicant as he was regularly paying the monthly amount as per terms of the agreement and had developed a successful busi--ness during last 8 years. The respondent No. 1 therefore filed a civil Suit No 1048/1977, in the Court of Vth Senior Civil Judge, Karachi, against the applicant under Arbitration Act as per their agreement, which was finally withdrawn by him on 5th December, 1978, The respondent during the pendency of the Civil Suit lodged a F. I. R, on 18th August, 1978 at police station Artillery Maidan, Karachi, under section 323/342/448/34, P. P. C, alleging "dissolution of partnership" between the parties and the applicant having received a cheque bearing No. 790869 dated 15th August, 1978 for Rs. 35,000, only as consideration for handing over possession of the shop to the respondent No. 1 on 17th August, 1978 and again trespassing into the shop on 18th August, 1978 with help of his employees beating and wrongfully confining the respondent. The palice produced the applicant and others in the Court of A. C. M.
Artillery Maidan, Karachi and they have been attending the Court from time to time but final challan was not submitted in the Court till April, 1979, when the applicant filed this application under section 561-A, Cr. P. C. In this Court. The D. S. P, who partly investigated the case filed a report on 15 May, 1979 in the Court of the learned A. C. M. Artillery Maidan recommending release of the applicant and others under section 169, Cr. P. C. For lack of evidence as neither the shopkeepers of the market nor independent witnesses supported the F. I. R. Of the applicant. Moreover signatures on the alleged cheque and the agreement did not tally with signatures of the applicant in the opinion of the Expert The learned magistrate on the same day released the applicant and others under section 169, Cr. P: C. For lack of evidence as neither the shopkeepers of the market nor independent witnesses supported theR.I. Of the applicant. More9ver signatures on the alleged cheque and the agreement did not tally with signatures of the applicant in the opinion of the Expert. The learned Magistrate: on the same day released the applicant and others in view of the Final Report of the D. S. P. The D. S. P. Who filed the final report in the trial Court also appeared before this Court on 19th May. 1979 in respond to the summons of this Court and stated that the case against the applicant and others was not being challenged for want of evidence and such report under section 169 Cr. P. C. Had already been filed in the trial Court. The applicant in view of the statement of the D. S. P. Withdraw his application in this Court on 19th May, 1979. The respondent No. 1 thereafter tiled a direct complaint before the A. C. M., Artillery Maidan on same facts of the F. I.
R dated 18th August, 1978 alleging that the police had not conducted the investigation impartially.
The learned Magistrate after recording the statement of the complainant and his witnesses issued summons on 15 July, 1979 against the applicant and others under section 323/342/448/147/34. P.
P. C. The applicant moved the trial Court under section 249-A, Cr. P. C.1979 but the learned Magistrate did not pass any order till this application was filed in this Court on 20 October 1979.
3. The learned counsel for the applicant has contended that the dispute being purely of a civil nature and the learned Magistrate having accepted the report of the police under section 169, Cr. P.
C, and releasing the applicant and others though he could have proceeded against them under section 190, Cr. P. C. The orders under section 173, Cr. P. C. Have been passed by the learned Magistrate after examining the evidence collected against the applicant and others. It would mean that the Magistrate on the perusal of the report is satisfied that the report of the police was correct and considered that it was in the interests of justice that no further proceed--ings should be taken against the accused. He relies upon Muhammad Nawaz Khan v. Noor Muhammad (PLD 1967 Lah.
176). It has therefore been contended that the subsequent complaint was not maintainable.
Moreover the allegation in the complaint for receipt of the cheque by the applicant, deed of dissolution of partnership and handing over possession by the applicant to the respondent have been agitated by way of a Civil Suit No. 166 of 1979 rind a copy where of has been placed on the record as Annexure `L'.
4. It has lastly been contended by the learned counsel that the dis--puted shop is located in the market area which is situated in a busy business centre of Saddar Karachi, where there are atleast 100 other shops and not a single witness out of the shop-keepers or their salemen has been cited in the complaint. The proceedings of the case against the applicant and others under the circumstances are nothing short of harassing them and are liable to be quashed. He places reliances on Fazal Karim v. Muhammad Mursaleen (1979 P Cr. L J 921); R. C. P. Guignard v. State (PLD 1963 Kar. 868).
5. The learned counsel for the respondent No. 1 on the other hand has contended that the applicant entered into a "deed of dissolution" of partnership, accepted a cheque amounting to Rs. 35,000, as per above said agreement and handed over the possession to respondent No. 1 on 17August, 1980.
He subsequently trespassed into the shop on the next day, beat the respondent No. 1 andth th th th wrongfully confined him for which F. I. R. Was registered on the same day. The names of the witnesses were given in the F. I. R, but police did not record the names. It has been further contended that the acts of the applicant and others are such which have constituted offences and they are being tried in the Court of compe--tent jurisdiction. The applicant without waiting for orders on his application has approached this Court so as to avoid trial.
6. Mr. Amir Hussain K. Jatoi, the learned counsel for the State contends that there is no bar to proceed on a direct complaint after an order under section 173, Cr. P. C. Has been passed by the Magistrate. It would be therefore difficult for him to support the quashment without any evidence having come on the record.
7. I have given considerate thought to the contentions of the learned counsel for the applicant as well as respondent and State. I have care. "Lilly gone through the citations referred to by the learned counsel for the applicant. It is clear from the facts of the case that the claim of the respon- -dent No. I is admittedly based on an agreement executed between him and tile applicant. It has also been agreed by them that the disputes if any were to be referred to arbitration. The respondent therefore in terms of agreements filed a civil suit No. 1048 of 1977 and the copies of such agreements a id the civil suit have been placed on the record as Exhs. A, B and C.
8. It was during the pendency of, the civil suit that the respondent filed a criminal prosecution and the learned Magistrate on the police report under section 169 Cr. P. C. Passed the orders releasing the applicant and others. There is no doubt that he was satisfied about the report being correct and further proceedings against the applicant and others not justified appears that the respondent No. 1 initiated the criminal prosecution with a new to enforce contractual liability and such a tendency of shifting the if cases to criminal Court has been deprecated. The respondent No. 1 has subsequently withdrawn his abovesaid civil suit and has again filed an other Civil Suit No. 166 of 1979 in February, 1979 for possession of the shop in which allegations of cheque, dissolution of partnership and possession have been agitated.
9. I am under the circumstances satisfied that the respondent No. 1 in this case by filing a direct complaint has resorted to a criminal Court solely for the purposes of circumventing the law and finding out an easy manner for enforcing his claim. It will be gross abuse of law if this case is allowed to be continued in the Court.
10. In the result, I accept this application and proceedings pending against the applicant and others under section 323/342/448/147/34, P. P. C. In the Court of A. C. M. Artillery Maidan, Karachi, are hereby quashed.