MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Criminal Quashment Petition under section 561- A of the Criminal Procedure Code, 1898 (Cr.P.C.) carries the following relief:-- ' "The petitioner, therefore, humbly prays that this Hon'ble Court may be graciously pleased to suspend the impugned order till disposal of instant application to restraint the JM Mastung [sic] from proceeding any trial or taking any cognizance permanently or till the time of disposal of this instant petition, declare the impugned order of JM Dera Allah Yar as well as impugned FIR is to be set aside or quashed, or to pass other or further order or orders as to your [sic] lordships may seem/deem fit and proper. The cost may also be awarded."
2. The relevant facts for disposal of the instant petition are that the private respondent filed a complaint under section 200 of the Cr.P.C. Before the learned Judicial Magistrate-I, Dera Allah Yar, for conducting an inquiry and registration of case against the petitioners. The learned trial Court entertained the said complaint and the matter was sent to the Credit Chief National Bank of Pakistan, Regional Head Office, Quetta Cantonment, and on receiving a detailed reply, the learned trial Court vide order dated 17th September, 2014 directed the SHO, Police Station Dera Allah Yar for registration of FIR against the petitioners. Corollary, a case vide FIR No,176 of 2014, under sections 161, 409 and 420 of the P.P.C. Was registered against the petitioners on the report of respondent No,2, hence this petition for quashment of the said FIR, on the ground that the learned trial Court has no jurisdiction to direct the SHO for registration of FIR against the petitioners and thus the impugned order is illegal and without jurisdiction.
3. Mr. Kaleemullah Quresh, learned counsel for the petitioner asserted that after approval of sanction advice in favour of respondent/complainant he was required to produce the guarantor, who in case of government employ was required to furnish an undertaking from a drawing disbursing officer ("DDO") with further undertaking that in case of customer's default, the guarantor's service benefit will be used for loan settlement. He maintained that in view of loan disbursing requirement the complainant was directed to produce the guarantor, therefore, he furnished a guarantee of one Bashir Ahmed Magsi, an employee, on the strength of Zarai Tarqiati Bank Limited ("ZTBL"). He added that when the documents of purported guarantor were sent to his parent department for verification, it was pointed out that the said guarantor is a contractual employee, because the Prime Minister's Youth Business Loan Scheme stipulated that the guarantor must be serving as a permanent employee. He contended that the status of purported guarantor could not be verified as the Zonal Chief of ZTBL had refused to verify the guarantor's status. Besides this the complainant approached the learned trial Court and succeeded to get the order of registration of FIR despite the fact that a letter was also sent to Human Resource Department of ZTBL, Islamabad, and reply in said regard was still awaited: He also referred to a letter of Manager of National Bank of Pakistan ("NBP"), Dera Allah Yar dated 31st October, 2014, which manifests that the complainant/respondent had furnished the property documents of the said guarantor in lieu of guarantee for release of loan amount and his case is still under progress and will be decided in near future. He finally urged that, keeping in view the peculiar circumstances, no criminal liability can be imposed upon the petitioners as according to their mandate and standard procedure of operating as stipulated by NBP and Prime Minister's Youth Business Loans Scheme. He stated that there is no evidence in respect of demanding bribe and the loan case of respondent/complainant could not be materialized due to his own fault, hence registration of FIR against them is against the norms of natural justice, which amounts to abuse o the process of law, therefore, liable to be quashed.
3. Mr. Sadiq Guman, Advocate appeared on behalf of the complainant/ respondent contended that the petitioners were not adhering to the principles and policy of Youth Business Loans Scheme and were demanding bribe from the complainant and on his refusal his case was kept pending and he was directed to fulfill the terms and conditions, which he had already fulfilled prior to submitting application for loan, as such, learned trial Court has rightly directed the authority concerned for registration of FIR and the petition being devoid of merits is liable to be dismissed.
4. Mr. Jamil Akhtar, learned Additional Prosecutor General also opposed the petition and endorsed the arguments put forth by learned counsel for the complainant.
5. I have heard the parties at length and have also gone through the record. It appears that, initially the complainant filed a private complaint before learned trial Court, who instead of recording the statement of the complainant and making direction for conducting inquiry had started investigation in the case and sought report from the Regional office of NBP. On receipt of detailed reply from the office concerned, again, learned trial Court did not bother to give direction for conducting inquiry and abruptly passed the order for registration of FIR. The course adopted by learned trial Court is not supportive by law as envisaged under section 190 of the Cr.P.C., which provides that Court may take the cognizance of offence upon receiving a complaint of fact, which constitutes such offence, but the procedure of complaints to a magistrate is enumerated under section 200 of the Cr.P.C. Which also provides that on receipt of complaint a magistrate shall examine the complaint on oath and thereafter to decide whether the same is triable by his court or by session. Therefore, it would be instructive to reproduce sections 200 and 201 of the Cr.P.C., which stipulates as under:-- "200. Examination of complainant, a Magistrate taking cognizance of -an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate: ' Provided as follows:
(a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192; or sending it to the Court of Session:
(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties..
(c) when the case has been transferred under section 192 and the Magistrate so transferring if has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
201. Procedure by Magistrate not competent to take cognizance of the case.--(1) If the complaint has been made., in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation__ to the proper Court with an endorsement to that effect.
(2) If the complaint has not been made in writing such Magistrate shall direct the complainant to the proper Court."
In view of referred to provisions of the Cr.P.C. The learned trial Court was bound to order for inquiry to be conducted or transfer the case to the Court of Session, but rather than fulfilling the mandate of law learned trial Court gave direction for registration of FIR which course is not permissible under the relevant provisions of law.
6. Now, adverting to the merits of the case, it is specifically mentioned that after approval of sanction advice the loanee/ complainant was required to fulfill the terms and conditions of the said loans scheme and when details of the guarantor were not verified by the guarantor's parent department. The petitioners were not supposed to proceed with the matter and to release the loan amount to the complainant without fulfilling the requisite formalities. The record further reveals that when the status of guarantor was not verified by his parent department i.e, Salary Disbursing Officer, he had refurnished a guarantee and the property documents were submitted in lieu of requisite guarantee. Moreover, the record is completely silent in respect of demanding bribe as well as there is no evidence on record, which could suggest that the complainant was asked to 'pay Rs,200,000/- as a token of bribery. In view of detailed report submitted by Mr. Ali Ahmed Panezai, Vice Manager/General Manager Credit of NBP the question of breach of trust does not arise for the simple reason that for establishing an offence under sections 409 of the P.P.C. The requirements of section 405 of the P.P C. Are required to be satisfied, which is reproduced hereunder:-- "Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
7. The question of quashment of criminal proceedings before the Hon'ble Supreme Court of Pakistan came up for hearing in case of Bashir Ahmed v. Zafarul-Islam, PLD 2004 SC 298, wherein it was held and the correct import of provision of Section 561-A of the Cr.P.C. Had been summarized as under:-- "(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law:
(ii) the said powers can ordinarily be exercised only where no provision exists in the code to cater for a situation where the code offers no remedy for the redress of a grievance:
(iii) inherent power can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and
(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and provision of section 561-A, Cr.P.C. Should be invoked only in exceptional cases for reasons to be recorded."
Thus, view of dictum laid down by the Hon'ble Supreme Court of Pakistan, this is a fit case in which the power under Section 561-A of the Cr.P.C. Can be exercised without any hesitation in order to prevent the abuse of the process of law or otherwise to secure the ends of justice. In such view of the fact that no evidence in respect of allegations leveled against the petitioners is available on record, whilst defence introduced by them is satisfactorily explained by the documentary evidence.
Any criminal proceedings in the instant case will amount to mere abusing process of law, therefore, FIR No,176 of 2014 under sections 161, 409 and 420 of the P.P.C. Lodged with Thana Dera Allah Yar, District Jaffarabad is hereby directed to be quashed and the petition is accepted.