This is an application under section 561-A. Cr. P. C., praying for the quashment of the proceedings of the case, State v. Ghulam Ali Shah under sections 420, 468, 506, 147, 148, P. P. C. Pending in the Court of Sessions Judge, Sanghar.
2. The facts in brief are that the complainant Ch. Muhammad Siddique son of Muhammad Ismail Rajput, resident of Khipro lodged his F. I. R., on 3rd December, 1972 at Police Station Khipro of Sanghar District alleging therein that Survey No. 253/2 and others measuring 67.36 acres in Deh "Wadhal" belonged to the claimants Fajar Ali and Maherdin both sons of Rehmat Khan Rajput. The- - said survey numbers were given by them on lease to Muhammad Qasim Hingoro who is their co- sharer and Kamdar as well. Fajar Ali and Maherdin on 25th November, 1972 sold these survey numbers by way of registered deeds to the complainant Ch. Muhammad Siddique, Muhammad Qasim, Ali Muhammad Samano, and Samarto for a consideration of Rs. 1,000 per acre. Fajar Ali and Maherdin after receiving their amount of consideration left for Punjab on the same day. The complainant, Muhammad Qasim, Samano, Muhammad Yousuf, Samarto and Ali Muhammad were at their aforesaid purchased lands on 2nd November. 1972. It was at about 4 p.m. When Hussain, Taj Muhammad Kassim Ali, Mohiuddin, Kassim Khan, Photo and the applicant Ghulam Ali Shah came there. Taj Muhammad out of them was armed with a pistol, Kassim Ali with a gun and the rest were having "dandas". Kassim Ali declared that the land in question has been purchased by them from Hussain and that they had nothing to do with it. They should therefore get out of the land, else they will be killed. The complainant and others also informed them that the disputed land was purchased by them from Fajar Ali and Maherdin and such sale-deeds in their favour were registered before the Sub-- Registrar on 25th November. 1972. The complainant however returned to Khipro where he learnt that Hussain, Kassim Ali, Taj Muhammad Maherdin, Photo Hingoro and the applicant Ghulam Ali Shah in collusion with each other prepared forged documents and a forged power of general attorney purported to have been given by Fajar Ali and Maherdin and on the strength of the forged documents they had got the same land registered on 28th November, 1972 in the Sub-- Registrar's office at Mirpurkhas. They also got a false entry effected in the office of Mukhtiarkar on the basis of the above-registered deeds. The police after usual investigation sent up the applicant and others on 7th February, 1973 to stand trial for the above offences before the Civil Judge and F. C. M. Sanghar which has been subsequently sent to the learned Assistant Sessions Judge, Sanghar as a result of the `Law Reforms Ordinance, 1972, where the proceedings are pending at the moment.
3. The learned counsel for the applicant contends that the land in question was actually purchased by co-accused in the case, in equal shares, from its owners/Khatedars Fajar Ali and Maherdin under valid registered sale-deed on 28th November, 1972 through their legal constituted general attorney Hussain Khan. The applicant afterwards came to know that the complainant Muhammad Siddique has also managed a Sale Deed in his favour through fictitious persons by fraudulent means and got it registered before the Sub-Registrar, Sanghar. He therefore filed a suit for declaration and injunction being first class Suit No. 79/1972 before the District Judge, Sanghar on 1December, 1972, challenging the fraudulent documents and sale-deeds so registered by the complainant Ch. Muhammad Siddique which has been admitted for regular hearing by the learned Sessions Judge, Sanghar and was pending disposal between the contesting parties.
4. It has been further contended that the complainant Muhammad Siddique having come to know about the institution of the suit by the applicant, managed a false F. I. R. In order to harass and humiliate the applicant and others on the basis of fabricated and concocted facts with the police of Khipro. The applicant got himself admitted on bail before arrest granted by the Sessions Judge, Sanghar. The facts and circumstances of the case clearly indicated that the criminal case was filed by the complainant is not a bona fide one as the dispute being purely of a civil nature, the criminal proceedings were misconceived. Moreover prosecution has not examined any witness till this application was filed in this Court. It has also been pointed out that the complainant Ch. Muhammad Siddique has lost his interest in the case after having compromised and patched up his differences with co-accused Kassim Ali, he even moved an application for withdrawal of the case under section 494, Cr. P. C. Which was fixed up for hearing on 8th February, 1977 before the District Magistrate, Sanghar and a copy of such a notice for hearing dated 27th January, 1977 has been produced in support of his contentions. He has also contended that the case against him is registered at the instance, of District administration of Sanghar in general and Mr. Saleem Ahmed Memon the then Deputy Commissioner, Sanghar in particular, who has animosity against him.
He has lastly contended that long seven years have elapsed but the prosecution has failed to complete the case. The facts stated in the F. I. R, even otherwise do not constitute any offence and the proceeding being abuse of the process of the Court are liable to be quashed a has relied upon Akbar Ali v. Gul Mohamed Shah (1978 P Cr. L J 143), Ghulam All Shah v, Commissioner, Hyderabad Division (1978 P Cr. L J 392), Shariful Hassan v. The State (1978 P Cr. L J 821) and Khatija v. The Stag (PLD 1978 Kar. 348).
Mr. Wasi Ahmed, the learned counsel for the State bas contended that it is not only the applicant who is an accused in the cats but there are fire other co-accused who are being tried for commission of offences and none of them has been made party in this case. He has further contended that the application for withdrawal of the case as per it's notice its hearing was fixed up un 8th February. 1977, but its not known as to how this application under section 494, Cr. P. C. Was disposed of or it was still pending before the District Magistrate. There is nothing on the record to support the contention of the learned counsel for the applicant if any civil suit has been filed by, thest applicant before registering a case against him. Moreover there are allegations and counter allegations of the parties against each other and the evidence has got to be looked into for a proper decision on it which is the function of the trial Court. He has relied upon Rahmat Maseeh v.
The State (1978 P Cr. L J 661) and Ghulam Nabi v. Mst. Jamila Begum (1978 P Cr. L J 817).
I have heard the learned counsel for the applicant as well as State. I have considered the contentions of both of them. The learned counsel for the applicant has raised several contentions and one out of them is also that of a delay in the proceedings of the case. It would be of a considerable interest to mention that the F. I. R., against the applicant was registered on 3rd December, 1972 and he got himself admitted on bail before arrest granted to him by the learned Sessions Judge Sanghar. After he was released on bail, he has for the first time appeared before the trial Court on 27th December, 1978 with a prayer for grant of bail on the ground that he had come to know of the case pending against him and he had not remained absent deliberately. The application for quashment has been filed by him on 22nd January. 1979. It is very clear from the circumstances that he has in all faced the proceedings before the trial Court for less than a month which is being contended as abuse of the process of the Court.
The contentions that sale of the disputed land in favour of the applicant was a bona fide one and a false F. I. R. Has been filed against him or that the matter was of a civil nature and allegations in the F. I. R., did not constitute any offence are such factors which Could be decided only after the evidence is recorded which is undoubtedly the function of the trial Court.
The application for withdrawal of the case has also been made when the applicant was not before the trial Court. In absence of its copy on the record it cannot be said if the same was made by the complainant or State and there is nothing to show as to what fate it met and under what circumstances. There is also no proof on the record if any civil suit has been filed by the applicant in respect of the disputed land. It cannot be said in absence of any such document on the record that no criminal offence is made out on the face of the F. I. R. Moreover it is not for this Court to interfere in the pending cases particularly when there are allegations and counter allegations of the parties.
The learned counsel for the applicant cited the following cases in support of his contentions:-
(1) In Akbar Ali and others' case, the proceedings were quashed as the same were instituted on the basis of a complaint filed under section 420 --P. P. C. By 'B' a businessman dealing to rapeseed who settled 200 maunds of rapeseed to be purchased by `B' for a rate to be settled. Subsequently.
'B' weighed the goods of the departed. When `A--- contacted them for settlement of rate, they evaded. `B' thus misappropriated goods of `A' and committed breach of trust.
(2) In Syed Ghulam Ali Shah's case (the present applicant) the proceedings under the Sind Crimes Control Act of 1975 were quashed as the Report was not complying with provisions of section 6 of the said Act and the petitioner neither convicted nor found guilty in any of the cases cited in report against him.
(3) In Shariful Hassan's case, the proceedings were quashed as the petitioner, an allottee of a plot in a Co-operative Society taking possession of plot and raising some construction on it and the Society subsequently cancelling allotment and charging him for criminal trespass.
(4) In Khatija's case, the proceedings initiated on an application made to the Martial Law Authorities containing police recommendation to the Court of a Sub-Divisional Magistrate for the issue of what is known as "C Class Summary" on the ground that the case was of a civil nature.
I have carefully examined all of the above cases and the principle arrived at for the purposes of quashment of the proceedings and I do not find any of the cases helpful to the applicant. The facts and circumstance of this case are totally different from all of the above cases.
For the purposes of section 561-A, Cr. P. C. This Court will not go; into the facts on evidence nor even the merits can be discussed. The quashment of the proceedings cannot be made merely on improbability of a particular fact but only when a fact on the face of it is so grossly absurd and fantastic that no conviction can result on such evidence. As far as this case is concerned, no such position exists at this stage. Whether any such offence is made out on the facts stated or not will ultimately, depend on the evidence The case is already pending before the trial Court and all the arguments can be urged there. It would be then left to trial Court to decide, whether any offence has been established or not. Under these circumstances, I do not find any case is made out for interference under section 561-A, Cr. P. C. The application is therefore dismissed.