' IMAM BUX BALOCH, J.---Through this Criminal Miscellaneous Application, the applicant sought quashment of proceedings of Criminal Complaint No,407 of 2011 pending in the Court of X-Judicial Magistrate, Karachi East.
2. Brief facts in a nutshell are that late Aga Khalid Ahmed husband of the applicant bought a house situated at 37-C, Tipu Sultan Road, Muhammad Ali Cooperative Housing Society, Karachi in the year 1964, but the said house was registered in the name of her mother late Mst. Hajira Begum. In the year 1986 by virtue of a Gift Deed, which was executed by late Mst. Hajira in favour of Aga Khalid Ahmed her son. It is further stated that on 17-4-1989 late Aga Khalid Ahmed entered into a lease agreement with respondent No,1 for a period of one year. It ispertinent to mention here that some litigation was going on between the applicant and her in-laws. It is stated that after expiry of lease agreement, the respondent No,1 S. M. Naseem had illegally occupied some portion of the premises due to the previous tenancy agreement. It is further stated that the respondent No,1 left the premises voluntarily in the month of September, 2009 as his wife Mrs. Shahzadi Yasmeen purchased a Bungalow No,96/II, Khayaban-e-Ghazi, Phase-VI, DHA, Karachi. It is further stated that the respondent No,1 lodged an F.I.R. No,140 of 2010 at Police Station Bahadurabad and after disposal of the F.I.R. Under "C" class, the respondent No,1 has filed the instant direct complaint against the applicant and that learned Magistrate has issued process against the applicant for her appearance.
3. I have heard Mr. Abdullah Munshi learned counsel for the applicant and Mr. Muhammad Rafi Kamboh learned counsel for the respondent No, 1.
4. Learned counsel for the applicant contended that respondent No,1 was a tenant in view of the lease agreement of the year 1989 and he left the premises in the month of September, 2009. He further contended that as litigation is going on between the applicant and her in laws the respondent No,1 becomes instrument in aid of the in-laws of the applicant. He further contended that F.I.R. No,140 of 2010 was lodged by the respondent No,1, which was duly investigated and subsequently disposed of under "C" class by the police and such recommendations of the police were confirmed by the learned Magistrate and that the respondent No,1 has not challenged such disposal of the case before any competent Court of law. He contended that on the same facts and circumstances at the instance of in-laws of the applicant, the respondent No,1 has filed a false complaint against an aged lady in order to harass and disgrace her. He further contended that pendency of the complaint is abuse of the process of law and this Court under its extraordinary jurisdiction could quash the proceedings. He has placed his reliance on the following case-laws:--
(i) M.S. KHAWAJA v. THE STATE (PLD 1965 SC 287).
(ii) SHAHKOT BUS SERVICE v. THE STATE AND ANOTHER (1969 SCMR 325).
(iii) MALIK SALMAN KHALID v. SHABBIR AHMED (1993 SCMR 1873).
(iv) THE STATE v. ASIF ALI ZARDARI (1994 SCMR 798)
(v) HUSSAIN AHMED v. MST. IRSHAD BIBI AND OTHERS (1997 SCMR 1503).
(vi) MIRAJ KHAN v. GUL AHMED (2000 SCMR 122)
(vii) MAQBOOL REHMAN v. THE STATE (2002 SCMR 1076).
(viii)CHAUDHARY MUNIR v. MST. SURRIYA AND OTHERS (PLD 2007 SC 189)
(ix) GUL HASSAN v. THE STATE (PLD 2008 KARACHI 567).
(x) ASIF ALI ZARDARI v. THE STATE (PLD 2008 KARACHI 310)
5. On the other hand Mr. Muhammad Rafi Kamboh learned counsel for the respondent No,1 conceded that F.I.R. No,140 of 2010 was lodged by the respondent No,1 at Police Station Bahadurabad against the applicant which was duly investigated by the police and lastly the police has recommended for disposal of the F.I.R. Under "C" class and the learned Magistrate disposed of the summary under section 173, Cr.P.C. As recommended by the police. He further admitted that the respondent No,1 has not challenged such order before any competent Court of law. He further contended that he has already submitted his submissions in Criminal Revision Application No,07 of 2011, which is filed by the respondent No,1 against the applicant.
6. I have considered the submissions of the learned counsel for the parties and have also perused the case file.
7. Admittedly. F.I.R. No,140 of 2010 was lodged by respondent No,1 at Police Station Bahadurabad and that the same was disposed of under "C" class by the orders passed by the learned Magistrate under section 173, Cr.P.C. It is also an admitted fact that the respondent No,1 has not challenged such order before any competent Court of law meaning by that the respondent No,1 was satisfied with the police investigation and that finality is attached to such order. It is also an admitted fact that the respondent No,1 has filed the direct complaint subject-matter of this Criminal Miscellaneous Application on the same facts as were narrated in the F.I.R. No,140 of 2010 by the respondent No,1. The applicant has produced a Conveyance Deed of Residential Plot of land bearing No-.96/II, Khayaban-e-Ghazi, measuring 500 sq. Yards, Phase-VI, DHA, Karachi, which was executed between Mrs. Tazeen Muneer and Mrs. Shahzadi Yasmeen wife of respondent No,1 and the applicant also produced extract form of general land register Cantonment Board, Clifton which also confirms that Mrs. Shahzadi Yasmeen wife of respondent No,1 has owned a Bungalow on Plot No,96/II, Khayaban-e-Ghazi, Phase-VI, DHA, Karachi. The above fact also supported the contention of Mr. Abdullah Munshi learned counsel for the applicant that respondent No,1 voluntarily left the premises of the applicant in the year 2009. It is also admitted fact that civil litigation is going on between the applicant and her in-laws and such documents are available with the file. It seems that respondent No,1 became an instrument of the in-laws of the applicant and has filed false case against the applicant. In such circumstances where the Court finds that there is abuse of the process of law and that justice requires immediate, real and substantial justice in such circumstances, the Court would be justified to exercise extraordinary jurisdiction to save a party from harassm ent and abuse of the process of law. It is no doubt true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of law subject only to the limitation that it cannot override an express provision of the Code. In the instant case I have found that the respondent No,1 at the instance of in-laws of the applicant is dragging the applicant who is an aged lady in one or the other criminal proceedings. In such circumstances, this Court has to come to the rescue of an innocent person. Even in my view the case of the applicant is an exceptional case in which jurisdiction under section 561-A, Cr.P.C. Could be exercised without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. And also of the view that in the circumstances of the instant case continuance of the proceedings before the Trial Court would be futile exercise, wastage of time and abuse of the process of Court as held in the case of MIRA KHAN v. GUL AHMED AND 3 OTHERS (2000 SCMR 122), the honourable Supreme Court has held as under:-- Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C, if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the present case are scrutinized on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned F.I.R. Would be sheer wastage of time. It is admitted in the F.LR. Which is based on the written application of the complainant that the disputed amount was given as "QarzeHasna". It is obvious that the addition of word "Amanat" with "Qarze-Hasna" is ridiculous and appears to have been added so as to justify the registration of the criminal case. The cases relied on by the learned counsel for the caveator support the view taken by the High Court.
' We are of the view that even on admitted facts no offence can be made out against the respondent as the dispute is entirely of civil nature which has been converted into criminal proceedings with ulterior motive. The High Court was, therefore, correct in quashment of the F.I.R.
And no exception can be taken to the impugned order. Consequently, leave to appeal is refused and this petition is dismissed."
8. As I have already observed that the continuation of proceedings in the trial Court in the above circumstances are abuse of the process of law and that in such circumstances it would not be justifiable that applicant should first move the trial Court under section 249-A, Cr.P.C, hence while exercising extraordinary jurisdiction under section 561-A, Cr.P.C., the proceedings arising out of Criminal Complaint No,407 of 2011 pending in the Court of X-Judicial Magistrate, Karachi East are quashed. The instant application is allowed.