1. The applicants above named have filed the above petition under section 561-A, Cr. P. C. For quashment of proceedings pending against them, under the provisions of sections 406, 419, 420, P.P.C. In the Court of City Magistrate, Nawabsbah, on the basis of the private complaint lodged by respondent No. 1. The facts leading to the filing of the comp--laint according to the applicants are as follows :-- The petitioner No. I is a father-in-law of the younger brother Haji Soomar of complainant/respondent No. 1. Before the marriage of Haji Soomar, an agreement was executed and duly registered before the Sub-Registrar, Dadu, which briefly reads as under:-- That Hussain Butt, (the petitioner No. 1) will get his daughter Gul Bakawali married with Haji Soomar (the brother of Respondent No. 1). Haji Soomar agreed to be Ghar Damad. Bajar (also brother of respondent No. I) agreed to get his daughter Mst. Banri married with Ghulam Ali and Allah Rakhio will get his daughter Mst. Zarina married with Ali Akbar. The marriage will take place at the attaining of puberty. Since Mst. Gul Bakawali was major, she was married to Haji Soomar.
2. That after the marriage of Haji Soomar, with Gul Bakawali on 12th February, 1978, he started cruelty upon her and disclosures came up of his bad habit with result, Haji Soomar left his wife with petitioner all alone. He did not keep his commitments as per Annexure "A".
3. That the petitioner No. 1 was threatened of dire consequences by the respondent No. I and his other brothers including Haji Soomar.
4. The petitioner No. 1 sent application on 6th November, 1979 to the competent authority for security of his life and record.
5. That subsequently daughter of the petitioner No. 1 filed suit No. 3 of 1980, in the Court of Family Judge, Khairpur Nathan Shah, for dissolution of marriage.
6. That the brother of respondent No. 1 (Haji Soomar; also filed suit No. 60/1980 in the Court of Civil Judge, Johi, for restoration of conjugal rights.
7. That in order to harass the petitioners who are his near relations and residing within the same house, the respondent No. 1 filed the comp--laint under sections 406, 419 and 420 before the respondent No, 2, on a vague and flimsy ground.
8. However, according to respondent No. 1, his case was, that the respondent No. I was in need of money as such about 11 months back he went to piri of Nawabshah to sell two buffaloes and ox.
9. There he met petitioners and deal was finalised on Rs. 14,000 payable in 2 months. This all happened in presence of Arab, Ghulam Mustafa and Choudhry Bisharat. The money was not paid to the respondent hence he filed the complaint and statement of Arab and Ghulam Mustafa had been recorded on oath. They both are near relations of the comp--lainant and reside in the same village. The report was lodged on 27th September, 1980. It is pointed, that the petitioner and respondent No. 1 were not on good terms. There were complaints and counter-- complaints against each other, which is matter of record.
10. The learned Advocate for the applicants in support of the above petition submitted as under ;- (a)That since the learned trial Court on the basis of the private complaint had issued processes against the applicants and since the complaint in question has been malafidely filed against the present applicants, en account of matrimonial disputes, no useful purpose will be served by moving application under section 249-A, Cr. P. C. Before the learned trial Court and as such the above petition was maintainable, as the case reported in PLD 19,79 SC 94 would not apply to the facts of the present case, as held by this Court, in the cases reported in 1983 P. Cr. L J 132 and 1982 P Cr. L J 1039.
(b) That the complaint clearly discloses at the most a dispute of civil nature between the parties. In addition to this, there was delay of 11 months in filing of the complaint in question, for which no satisfactory explanation has been given. 1n addition to this neither date and the time for alleged sale of the buffa--loes has been given in the complaint and further statement of the complainant and P.Ws. Recorded in the preliminary inquiry does not disclose any criminal offence under which the processes have been issued and consequently the complaint in question was filed simply to harass the applicants and amounted to abuse of the process of the learned trial Court. In support of this con--tention the learned Advocate for the applicants relied upon cases reported in 1981 P Cr.
11. L J 455, 1982 P Cr. L J 278 and 1980 P fir. 4 J 489 and submitted that continuance of the proceedings pending against the applicants would amount to abuse of the process of the learned trial Court.
12. The learned Advocate appearing for the State on the other hand submitted, that since process was issued after holding of preliminary inquiry, this is not a fit case for quashment of the proceedings, its prosecution has led no evidence so far, on account of the stay orders passed by this Court. In support of this contention the learned Advo--cate for the State relied upon cases reported in 1968 SCMR 380 and 1971 P Cr. L J 1061. The learned Advocate for the State further submitted, that the above application was not maintainable as the applicants have not moved the learned trial Court under section 249-A, Cr. P. C. Before filing of the above application, in view of the law laid down by Hon'ble Supreme Court, in case reported in PLD 1979 SC 94.
13. The learned Advocate for respondent No. 1 (complainant) on the other hand submitted, that since the applicants have not moved the learned trial Court under section 249-A, Cr. P. C. Before coming to this Court the above petition is not maintainable and on this ground the same is liable to be dismissed.
14. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the copy of the complaint and the copies of the statements recorded by the learned trial Court in prelimi--nary inquiry as well as documents filed by the applicants in support of their contentions.
15. It is admitted position, that though parties are closely related, but still their relations are strained on account of matrimonial dispute inter se. It is also admitted position that on account of matrimonial disputes certain litigation cropped up between parties. Keeping this in view, delay in filing of the complaint assumes important fact, about the b6na fides of the complaint in question, which basically and prima facie is of a civil nature.
16. Explanation given by the complainant for delay in filing of com--plaint in question, in my opinion is not satisfactorily. Since complain in question prima facie is of civil nature. I see great force in the con--tention of the learned counsel for applicants, that case reported in PLD 1979 SC 94 is not bar to maintainability of above petition, specially in the present cases, where on the basis of private complaint, the learned trial Court, after holding preliminary inquiry issued processes against the present applicants and as such no useful purpose will be served, by moving application under section 249-A, Cr.P.C. Before the learned trial Court, which has tentatively come to conclusion, on print facie nature of the complaint in question. Therefore I am of the opinion that above petition is maintainable and cases reported in 1983 PCr. L J 132 and 1982 P Cr. L J 1039, fully support this conclusion of mine and as such I see no force in the contentions of the scarce Advocate for respondent No.1 and State Counsel that above petition is not maintainable.
17. In view of my above conclusion, about maintainability of above petition, I would now take up the second contention of the learned Advocate for applicant, regarding quashment of the proceedings in question.
18. I have carefully gone through the private complaint in question, copy of which is on record as well as through the statements of P. Ws. Recorded in preliminary inquiry, by the learned trial Court.
19. Neither complaint nor the statements of P. Ws. Recorded in P. E. Disclose commission of offences under sections 406 and 420, P.P.C. In m opinion. . Ingredients of the offences of cheating nor misappropriation are mentioned in complaint or in the statements of P. Ws. Recorded by the learned trial Court, before issuance of process. The sum an substance of statements of P. Ws. In P. E.
20. Were, that applicants offered to purchase the buffaloes in question and promised to pay their prices, within 2 months, but failed to do so and hence complaint in question was filed, after lapse of 11 months. It is also admitted position, that just before filing of complaint in question daughter of applicant No. 1 had taken proceeding against the brother of respondent No. 1, for dissolution of marriage and respondents No.1's brother had filed suit for restitution of conjugal rights, in this connection on 27th September 1980 i.e. On the same day, when P. E. Was conducted by learned trial Court and process issued against the applicants. This fact prim facie supports the contention of the learned Advocate for the applicants, that this belated complaint was filed to pressurise applicants and to harass them, within mala fide intentions. Furthermore, even if the allegations mentioned in complaint are established by the respondent No. 1, it would be a civil dispute between the parties, in respect of alleged non-payment of price of the buffaloes.
21. Therefore filing of complaint and issuance of process against the applicants, in my opinion amounted to abuse of the process of the learned trial Court and as such continuance of the proceedings pending in the learned trial Court would result in harassment of the applicants, as prima facie statements of P. Ws. Recorded in Preliminary Enquiry do not disclose offence under sections 406 and 420, P.P.C. At all. The contention of the learned Advocate of respondent No. I and Stat counsel, that since processes were issued after P.E proceedings ought not to be quashed, before recording of evidence by learned trial Court, is my opinion has no force, in view of my conclusions about state agents of said P. Ws. Cases cited by learned Advocate for the State I this connection are based on different facts and as such of no be, to him.
22. Therefore I allow the above petition and quash the proceeding pending against the applicants in the Court of City Magistrate, Nawab shah under sections 406, 419 and 420, P.P.C. And discharge the bail bonds executed by the applicants.