' SHAHNAWAZ TARIQ, J.--- Through the captioned criminal application under Section 561-A, Cr.P.C, applicant Mirza Humanyoo Murtaza has sought the quashment of the proceedings of FIR No,125/2013, under sections 506(2)/147/ 148/149, P.P.C., registered at Police Station Ubauro, District Ghotki, by complainant Shabbir Ahmed against the applicant above named.
2. The relevant facts spelt out from the instant criminal application are that allegedly the applicant obtained loan amounting to Rs,5,78,00,000 from complainant for his dairy business, who time and again demanded to return the said amount. It is further alleged that on 5-8-2013, complainant received a call on his cell phone from the applicant who asked the complainant to reach at Ghosia Hotel at Ubauro highway bypass to receive the said loan amount. Whereupon the complainant along with Liaquat Ali and Shahzad Arain reached at Ghosia Hotel at 1700 hours, by car and noticed that one white colour Suzuki Cultus, car came from Karachi, wherefrom applicant along with Zohaib Ahmed son of Siraj Mir Zubairi resident of Karachi, Nabeel son of unknown resident of Karachi and two unknown persons got down and the applicant pointed a pistol towards the complainant and issued threats that if in future he demanded said money, he would be murdered and no one would be able to find his dead body. On seeing the weapon, complainant and his companions remained silent. Thereafter applicant and his accomplices went towards Karachi by same car and complainant along with his companions proceeded to Sadiqabad, Punjab, and after due consultation he lodged the instant FIR.
3. Learned counsel for the applicant contended that applicant is innocent and has been involved in a false case. He submitted that applicant is permanent resident of Karachi and carrying his business, while the complainant is permanent resident of Sadiqabad, Punjab. He further contended that the complainant had failed to produce any written proof before the Investigating Officer as well as this Court regarding the alleged loan of Rs,5,78,00,000, therefore, the question of calling the complainant at Gosia Hotel at Ubauro bypass, District Gohtki, does not arise.
4. Learned counsel further contended that the allegations made in FIR from the face of it are false and fabricated because both parties are residing faraway from the place of incident which is a Katcha hotel as such the allegations of paying such huge amount in cash are fictitious. He further submitted that the registration number of car is not mentioned in FIR which was lodged with the unexplained delay of 22 hours. He also submitted that there is no probability of applicant being convicted as such the further adjudication would be the wastage of time of the trial Court.
5. Learned counsel also contended that Investigating Officer had not investigated the crime properly and failed to record the statements of the accused and his witnesses. He further contended that as per data of CDR of the mobile of the applicant, he did not go out of Karachi during those days and even the vehicle of the applicant, impounded by the police also remained within Karachi which is proved from tracking record of his vehicle No,AVV-009, Suzuki Cultus. He further contended that the father of the applicant filed C.P. No,3590/2013, whereby Investigating Officer was directed to produce said car before this Court and same was released through Nazir on surety. He further contended that the applicant was granted bail by High Court and simultaneously proceedings of the trial were also stayed.
6. Learned counsel also submitted that the applicant is a well reputed businessman and enjoying good reputation in community while the alleged dispute of amount is between the complainant and co-accused Zohaib, who contracted love marriage with the sister of the applicant, who is doctor by profession and practicing at Agha Khan Hospital, Karachi. The complainant with mala fide intention wanted to recover his outstanding balance amount from the applicant which is payable by his said brother in law.
7. Learned counsel for the complainant vehemently contended that after completion of the investigation, Challan has been submitted before the trial Court, therefore, applicant may face trial and prove his innocence by adducing evidence. He further contended that complainant had given a huge amount of loan to the applicant and in order to usurp the said loan the applicant called him at Ghosia hotel and by showing weapon issued threats for dire consequences as such the complainant has rightly lodged the instant FIR.
8. Learned APG adopted the arguments advanced by the learned counsel for complainant and submitted that instant application has been filed with mala fide intention only to frustrate the process of the trial.
9. Perusal of the available record and consideration of the arguments advanced by the parties emanated that the complainant is a landlord and permanently residing at Sadiqabad, Punjab, while the applicant is settled at Karachi and carrying his business. Allegedly, the prime issue of the controversy is the payment of loan by the complainant to applicant worth Rs,5,78,00,000 for which no documentary A proof has been produced during the course of the investigation before the Investigating Officer as well as this Court. Furthermore, the CDR data of the mobile of the applicant and the tracking record of his car which are available on the record prima facie indicated that the applicant and his car during the days of the alleged incident remained at Karachi, but this material was not considered by the Investigating Officer which proves that the investigations were not conducted honestly and properly.
10. It is also important to mention that the plea taken by the complainant that applicant made a call from his cell phone and called him at Ghosia hotel to pay the huge loan amount in cash, which is a Katcha hotel, situated at Ubauro highway bypass, District Ghotki, but such data of cell phone was not collected by the Investigating Officer to determine that whether any calls were made and received by the parties. It is also an astonishing fact that the applicant for payment of said loan, instead of calling the complainant at Karachi or travelling to Sadiqabad, called him at a Katcha hotel which is situated faraway from Karachi as well as Sadiqabad. The allegations made in FIR regarding the alleged offence are self-contradictory and preposterous that in the prevailing scenario of worst law and order condition in the Province of Sindh, no one can dare to take a huge cash with him, let alone to repay the loan at a Katcha hotel on highway instead of transmitting said amount through cheque, pay order or online service.
11. Moreover, the contents of FIR are also silent regarding the registration number of the car in which the applicant travelled from Karachi to Ghosia hotel and even no details of the alleged incident were mentioned therein and mere alleging that applicant by showing weapon issued threats to kill the complainant in case he demanded the loan amount, is not adequate. Surprisingly, the complainant party did not make any hue and cry to attract the public as well as the hotel personnel but calmly proceeded to Sadiqabad, Punjab, instead of informing the area police or hotel personnel. Indeed the complainant has failed to show any proof regarding the transaction of huge loan amount, while the applicant has categorically stated that the disputed amount was outstanding against his brother in law namely Zohaib, who contracted love marriage with the sister of the applicant, who is a doctor practicing at Agha Khan hospital, Karachi.
12. The facts and circumstances mentioned in FIR are general in nature and there is no probability of the applicant being convicted for the alleged offence of issuance of threats to the complainant.
Moreover, both the eye-witnesses belonged to Sadiqabad, Punjab, and neither any person from Ghosia Hotel nor from the vicinity were associated as witness. It is well settled that after submission of Challan the process of the trial should not be disturbed and matter be decided on merits after recording the evidence of the witnesses, but in a case when there is no probability of the conviction of the accused and liabilities to be enforced are civil in nature, further continuation of trial would be amounting to misuse of the process of law. In such a case it is incumbent upon the High Court, in order to meet the ends of justice, to exercise its inherent jurisdiction to quash the FIR and not to permit enforcement of civil liabilities through criminal proceedings. In case of Maqbool Rehman v.
The State, 2002 SCM R 1076, the Hon'ble Supreme Court has observed as follows:-- "9. In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceeding should not be buried by way of quashment. The petitioner appears to be laboring under a misconception of law that in all cases where the accused persons are summoned by a Court of law, it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment it has prevented the mischief and advanced the cause of justice. "
13. Considering the above facts and circumstances, the instant criminal miscellaneous application is converted into Constitutional petition and same stands allowed. Consequently, the proceedings commenced under FIR No,125/2013, under sections 506(2)/147/148/149, P.P.C., lodged at Police Station Ubauro, are hereby quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.