The applicants above-named have filed the above petition for quash--ment of proceedings pending against them, in case No. 11 of 1978 Mohammad Jumman v. Noor Mohammad and 3 others under section 149/ 423/465/471, P. P C. In the Court of Civil Judge and F. C. M. Dadu, on the following facts and grounds.
2. The respondent No. 1 Mohammad Jumman lodged a direct complaint alleging, that he had a General Power of Attorney from one Kanwar Mohammad Majeed Ali khan, who owned Survey Nos.
541-542 in Deh Nari Taluka Mehar District Dadu and that respondent No. 1 on the strength of the said Power of Attorney had entered into an Agreement to sale on 13th February, 1969 with his (Jumman's) own brother Bungal Khan for the sale of said Survey Nos. 541-542, who started cultivating the same.
3. That in November, 1977 when respondent No. 1 and his brother Bungal Khan were working in those survey Nos. The applicants 2 and 3 came and told them, that they, the applicants had bought the above survey Nos. Through a registered sale-deed and that mutation bad been done and their names entered in the Record of Rights. Then the complai--nant went to respondent No. 2 Noor Mohammad who was Tapedar, who affirmed, that the above-said applicants had bought the said land and the same was entered in their names in the Record of Rights, the complainant then contacted Kunwar M. Majeed Ali, who denied to have sold the land to the applicants, the complainant then filed the direct complaint against respondent No. 2 Noor Monammad and 10 others including present 3 applicants. The learned lower Court after holding the preliminary enquiry was pleased to take cognizance against respondent No. 2 Noor Mohammad and 3 applicants above-named, under sections 419/433/465 and 471. P. P. C. And ordered the issuance of process on 1 March, 1978.
4. The applicants above-named being aggrieved by the cognizance taken by the Civil Judge and F. C. M. Dadu, on above-mentioned private complaint, have filed above petition for quashment of the said proceedings under section 561-A, Cr. P. C. On the grounds mentioned in above petition.
5. The learned Advocate for the applicants, in support of above petition submitted as under :-
(a) That as quashment of private complaint is sought, provisions of section 249-A, Cr. P. C. Is not bar to filing of above petition, directly.
(b) Complaint in question does not disclose any criminal offence at all and as such taking of cognizance amounted to abuse of the process of the learned trial Court, specially as civil litigation in respect of dispute in question is pending in shape of Suit No. 3 of 1978, in the competent civil Court.
6. In support of the above contentions, the learned Advocate for the applicants relied upon cases 1978 P Cr. L J at pp. 143/821/831, 1976 P Cr. L J at pp. 195/465/471.
7. The learned Advocate for the State, on the other band submitted, that above petition is not maintainable, as applicants have not moved learned trial Court under section 249-A, Cr. P. C., in view of 1979 SCMR94.
8. Respondent No. 1, in spite of notice for today's hearing dated 13th April, 1982, was called absent.
9. I have carefully considered the above submissions made by .The learned Advocates before me and have gone through various authorities cited by the learned Advocates.
10. The main question which requires consideration is, whether above petition is maintainable in view of 1979 SCMR p. 94 or not. The learned Advocate for the applicants submitted, that in private complaint, the learn--ed trial Court after preliminary inquiry issues and process as such comes to tentative assessm ent about the maintainability of such case and as such it would not be possible for such trial Court to grant application under section 249-A, Cr. P. C., without recording of evidence and consequently filing of such application, before such trial Court, will be exercise in futile.
11. The second contention that was raised by the learned Advocate for applicants in this connection was, that very wording of section 249-A, Cr. P. C. Shows, that the said section is not applicable to private comp--laints, as the said section contemplates hearing of prosecutor, which is only possible in challan cases. In this connection the learned Advocate for the applicants drew my attention to definition of "Public Prosecutor" in section 4 (1) (t), of Cr. P. C. And section 495, Cr. P. C.
12. I have carefully considered the above submission made by the learned Advocate for the applicants. 1n my opinion provisions of sec--tion 249-A, Cr. P. C. Were incorporated to enable Magistrate at any stage of the trial, to acquit the accused, if after hearing the prosecutor and the accused, Magistrate comes to the conclusion, that the charge is ground--less or there is no probability of the accused being convicted of any offence, as such power did not exist prior to incorporation of this sec--tion. In private cases, Magistrate takes cognizance after preliminary inquiry and then issues process, which means prima facie he is satisfied, that there exist the charge levelled against accused. Therefore in such cases, it will be too much to expect from a Magistrate, without recording of some evidence, to exercise powers vested in him under section 249-A, Cr.-P. C. In view of this in my opinion, if the accused persons consider issuance of process by the Magistrate as abuse of the process of the said Court, and on this ground want the said proceedings initiated against them to be quashed, before recording of any evidence, which according to such accused persons is not necessary for coming to such conclusion, my opinion the remedy provided under section 561-A, Cr. P. C. Will the only remedy available to such accused persons, as moving of apple--cation under section 249-A, Cr. P. C., in such private complaints at that initial stage will be futile exercise. Therefore, I am of the opinion, that in any private complaint, where Magistrate has taken cognizance and issue process and no evidence is recorded, and if thest accused persons are o A the opinion, that issuance of the process against them by Magistrate in question, amounts to abuse of the process of said Court, and if from private complaint in question, if the accused persons are able to show, that the charge against them cannot be maintained and the complaint has been filed mala fidely, in order to harass the accused persons, in order to pressurise them to compromise civil dispute between the parties, for which civil proceedings in competent civil Courts are pending between the said parties; then such accused persons could come to the High, Court, under the provisions of section 561-A, Cr. P. C., without first moving application under section 249-A, Cr. P. C. In such cases. The Hon'ble Supreme Court in its judgment reported in 1979 SCMR 94, no doubt, has held, that the learned trial Court must be moved first, under the provisions of section. 249-A, Cr. P. C., before quashment application under section 561-A, Cr. P. C. Is made in High Court. However, this was not the case arising out of private complaint, but it was a police case under section 279/338/304, P. P. C. Therefore in my humble opinion, this authority is distinguishable on account of the facts of the present case, which arise out of a private complaint.
13. The second contention raised by the learned Advocate for the' applicant that section 249-A, Cr.
P. C. Is not at all applicable to a private complaints, in my opinion, has no force. The prosecutor mentioned in section 249-A, Cr. P. C. Could be advocate for the complainant in private complaints and the contention of the learned Advocate for the applicants, that prosecutor referred to in section 249-A, Cr. P. C. Means public prosecutor, is based on erroneous interpretation of said section and as such I see no force in this contention of the learned Advocate for the applicants.
14. In view of my above conclusions. I would now consider the above petition on merits. I have gone through the complaint in question and in nay opinion the complaint in question does not at all disclose any crimi--nal offence. The complaint is based on a civil dispute between the parties end relates to transfer of immovable property by the original owner, after having given general power of attorney to the complainant, who claims that on the basis of said general power of attorney, the property was transferred by him to his brother, by an agreement which is not registered. The applicants are the purchasers of the said property by registered sale--deed and their names have been duly mutated in record of rights on such basis and as such from the facts as mentioned in the complaint in question, respondent No. 1's grievance, if any, for cheating etc. Should be against the original owner Kanwar Mohammad Majeed Ali Khan and not against the present applicants and/or against respondent No. 2, who acted on the basis of registered sale-deed and made necessary mutation in record of rights.
15. Therefore, in my opinion, the facts as mentioned in the complaint relate to civil dispute and such facts cannot, in my opinion, result in the conviction of the present applicants and respondent No. 2, whose name was deleted as respondent on 19th April, 1980 and as such continuance of the said proceedings, before the learned trial Court would amount to abuse of the process of the said Court, in view of the facts and circum--stances of the case in question, as hereinabove mentioned by me.
16. Therefore I allow the above petition and quash the proceeding pending against applicants and one Noor Muhammad son of Fat Mohammad in the case of 11 of 1978 Mohammad Jumman v. Noor Mohammad and 3 others, under section 419/423/465/471, P. P. C. Pending in Court of Civil Judge and F. C. M. Dadu and discharge the bail bonds executed by them. 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.