' MAZHAR IQBAL SIDHU, J.--- Petitioners Engineer Dr. Muhammad Naseem, Mian Muhammad Saleem and Azeem by an application under section 561-A, Cr.P.C. Have sought for termination of proceedings pending against them before learned Magistrate Section-30, Lahore in private complaint filed by Sohail Anwar respondent No,1 through a private criminal complaint under sections 452, 506, 500, 379 and 427, P.P.C. Pertaining to Police Station Ghalib Market, Gulberg-III, Lahore.
2. Facts necessitating to the filing of instant application are that Sohail Anwar respondent/complainant has alleged that on 6-4-2011 at about 11-30 a.m., when his servant Ghulam Abid was present at the shop to open it, the petitioners came there and on opening the locks, they forcibly entered the shop, caused damage to the precious articles present there.
Complainant intervened but by per-minas was not permitted, after some time, the bailiff of the court along with local police arrived at there. The complainant asked them to do justified actions but the respondent through hooliganism damaged the articles. At the spot, the complainant asked the petitioner No,1 that when he would return the amount of Rs,5,00,000, kept by him as security, mother of the complainant was abused and some articles were alleged to have been stolen away by the petitioners. Incident was seen by complainant Ghulam Abid, Abdul Haleem and so many other persons.
3. On the filing of the complaint, by observing preliminary proceedings, on 6-7-2011 petitioners were summoned under sections 452, 506, 379, 427, P.P.C. For 21-7-2011. Petitioners put their appearance before learned trial Court on 23-11-2011, submitted bail bonds and thereafter moved an application under section 249-A, Cr.P.C., the same was dismissed, then case was fixed for framing of formal charge for 14-1-2012, thereafter the instant application.
4. Learned counsel for the petitioners submits that mother of the respondent No,1 namely Mst.
Shahmeen Almas took the shop of the petitioners on rent situated in M.M. Alam Road, Gulberg-III, Lahore against an amount of rent of Rs.54,350 per mensum on 1-11-2004 vide a rent deed; the tenant became defaulter since March, 2006, then petitioner No,2 and the co-owner filed an ejectment petition on 14-11-2006, the learned Rent Controller passed an order under section 13(vi) of the Rent Restriction Ordinance, 1959 by fixing the tentative rent at the rate of Rs. 2,340 per mensum from the year, 2008 and directed to the mother of the respondent to deposit the same in the court; mother of the respondent No,1 took up matter before the High Court in SAO No,66-2008 in which order was passed by this court on 27-6-2008 and directed her to pay the rent as directed by the learned Rent Controller along with arrears to the petitioner No,2 on or before 12-8-2008, then she did not appear before learned Rent Controller and consequently, on 27-1-2011, order of ejectment was passed by the learned Rent Controller. Further submits that petitioner No,2 filed an execution petition to obtain the possession of the shop in question from the mother of respondent No,1 and for the recovery of arrears amounting to Rs.40,16,950 as directed by the learned Rent Controller, resultantly, warrants of possession were issued on 2-4-2011 by the learned Special Judge Rent and on 6-4-2011 (eventful day), through bailiff of the court as well as local police, possession was handed over to the petitioners. Further adds that civil litigation on the other side was also initiated between the parties; after summoning in the complaint case, application under section 249-A; Cr.P.C. Was filed, the same was dismissed. Further submits that private complaint is an outcome of afore-thought of the respondent in collusion with her mother Mst. Shahmeen Almas on account of eviction from the shop owned by the petitioners; no such incident as alleged has ever taken place; the bailiff of the Court after obtaining the possession, handed over the same to the petitioners; the bailiff acted under the orders of the Court; no damage to any articles lying inside the shop in question was caused and nothing was stolen away from the same. Further adds that a big amount is outstanding against the respondent and her mother as directed by the competent Courts and in order to usurp the same an dntique/device has been contrived by the respondent by filing the instant private complaint to put pressure upon the petitioners' party in order to settle the money matters and the filing of instant complaint in order to circumvent the proceedings of the civil court. Further adds that report of the bailiff is available on 'record showing that peaceful' transfer of possession was culminated, on the other hand, petitioners have knocked the door of the court for recovery of arrears/tenancy amount; all the petitioners are highly qualified and in circumstances of the case if proceedings are made incessantly would amount to abuse of process of law and wastage of precious time of the court. Lastly, as ace, it has been submitted that no probability/possibility exists that petitioners may be punished in the case for so many reasons and particularly for this reason that neither any details of the damages articles nor any details of the stolen property have been mentioned in the private complaint nor any case was lodged by invoking the police through section 154, Cr.P.C. And has thus prayed for acceptance of instant application by setting aside the order of learned trial Court passed on application of the petitioner filed under section 249-A, Cr.P.C. Learned counsel in support of his arguments has placed reliance on cases reported as Muhammad Kashif and others v. Major (Retd.) Atta Ullah Butt and others (2003 MLD 1017), Iftikhar Ahmad and another v. S.H.O., Police Station Kohsar, Islamabad and 2 others (PLD 2001 Lahore 399), Allah Rakhio and others v. The State (2001 PCr.LJ 551), Gul Hassan v. The State (PLD 2008 Karachi 567), Mazhar Ibnehassan Siddiqui and 2 others v. The State and another (1997 PCr.LJ 1030), Niaz Ahmed alias Niaz Hussain v. The State (1997 PCr.LJ 1034), Wasim Akram v.
The State (2006 YLR 168), Muhammad Khalil v. S.H.O. Police Station Gujjar Khan, District Rawalpindi and 5 others (MLD 2008 Lahore 704), Zulfiqar Ali Mahar v. The State (YLR 2003 Karachi 2806), State through Advocate-General, N.-W.F.P., Peshawar v. Gulzar Muhammad Dy. Director Agriculture Development Agency N.-W.F.P. And others (1998 SCMR 873), Ghulam Hussain Balouch v. Liaqat Ali Balouch (1999 SCMR 483 = 1999 PLC (C.S.) 397), Zafar and others v. Umer Hayat and others (2010 SCMR 1816), Ansar Ali and another v. The State (2010 SCMR 1821), Lal Khan and another v. Station House Officer, Police Station, Kotwali Jhang and 6 others (PCr.LJ 2010 Lahore 182), Muhammad Aslam, (Amir Aslam) and others v. District Police Officer, Rawalpindi and others (2009 SCMR 141), Khuda Bux v. The State (MLD 2010 Karachi 864), Asif Ali Zardari v. Government of Pakistan through Ministry of Interior, Pakistan Secretariat, Islamabad and 3 others (YLR 2001 Karachi 1749), Atta Muhammad and another v. The State and another (YLR 2010 Quetta 3000); Haji Muhammad Abbas v. Mrs. Naila Tranum Jamshed and 4 others (PCr.LJ 2001 Peshawar 628) and Badar Ur Islam v.
District Police Officer, Faisalabad and 3 others (YLR 2007 Lahore 2766).
5. Respondent No,1 has been appearing before Court but thereafter he did not. He was summoned, especially, he put appearance and in his presence, proceedings were adjourned for today. The respondent is a practising lawyer but being novice, unfortunately, lacks sophistry.
6. Learned DPG has not argued in the case because according to him respondent either himself shall argue as being an Advocate or on his behalf, his learned counsel may argue on the subject.
7. Arguments heard. Record perused.
8. It is an admitted fact that Shop in property No,14-C-II, at M.M. Aalam Road, Gulberg-III, Lahore was owned and possessed by the petitioners and the same was rented out to Mst. Shahmeen Almas, mother of the respondent by fixing rent amount per mensum through rent deed dated 1-11- 2004. On account of non-payment of rent amount, matter was taken to the Court of learned Rent Controller, consequently, ejectment petition was accepted and in execution petition, eviction of the tenant (respondent's party) was ordered. The rent amount was enhanced along with the arrears.
The matter came to this court but the respondent's party could not get any relief in his favour. On 6-4-2011 at about 'Dopehar Wela', the bailiff of the court along with the local police came at the said shop, by the orders of learned Rent Controller, possession of the shop in question was handed over to the petitioners, after that, civil litigation was also ensued between the parties for their respective claims such as return of security amount to the tune of Rs.5,00,000 against the petitioners' party vis-a-vis the petitioners, instituted a suit for recovery of rental amount along with its arrears as directed by the learned Rent Controller and by the High Court and the same is going on, No detail of any articles which were allegedly damaged in alleged incident has been mentioned in the private complaint and even in the cursory statements of the witnesses, the same situation lies towards alleged stolen articles. Mother of the respondent was running a business in the shop, misadventurely, she could not pay the rent amount resulted in litigation and ejectment of the respondent's party and further the civil litigation and all the facts and circumstances persuade the court that instant complaint has been filed with maliciousness, aforethought and in presence of the bailiff of the court and police force, it cannot be expected by a private person, whosoever, may be including the petitioners to cause any damage to any article or to commit theft of the same, therefore, it is concluded that private complaint has been filed on false facts and to continue the same would necessarily amount to abuse of process of law and wastage of judicial time as it is based upon mala fide. Even otherwise, circumstances of the case do not persuade to its culmination to conviction, therefore, relying upon case-laws of learned counsel for the petitioners mentioned supra, instant petition is allowed. Resultantly, order dated 7-1-2012 passed by the learned trial Court on the application of the petitioners/accused filed under section 249-A, Cr.P.C. Is set aside and the proceedings in complaint case titled Sohail Anwar v. Mian Muhammad Saleem are hereby ordered to be terminated and quashed.