JUDGMENT\ The petitioners above-named have moved the above petition under section 561-A, Cr. P. C. For quashment of the proceedings pending against them under section 406/506/34, P. P. C. On the basis of direct complaint filed by respondent No. 2 above named, in the Court of A. C. M. 1st Class, Soldier Bazar Brigade, Karachi, on the following facts and grounds :-
1. That the petitioner No. 1 Mst. Hasina Bano is widow of Muhammad Bux and she is owner of property No. 376/D.1 Khudadad Colony Karachi, which was purchased by her from Miss Roshan Jahan wife of Muhammad Ali for Rs. 35,000 under sale-deed dated 7th September, 1977. Abdul Waheed is a tenant in respect of the said premises by virtue of agreement dated 3rd October, 1977 executed by him in her favour. Respondent No 2 Mst. Tasneema Banu is wife of Abdul Waheed.
Petitioner No. 2 Bashir Ahmed is brother of Petitioner No. 1.
2. That the petitioner No. 1 filed a Rent Case No. 6952 of 1980, in the court of Vtth Senior Civil Judge and Rent Controller Karachi, under section 14 of the Sind Rented Premises Ordinance, 1979, on 2nd December, 1980 for ejectment against Abdul Waheed, the husband of Respondent No. 2, pleading therein amongst other grounds, that she was a widow and needed the premises bona fidely for her personal use.
3. That on 20th January, 1981, the tenant Abdul Waheed filed a suit No. 331 of 1981, in the Court of VII Senior Civil Judge at Karachi, for specific performance and permanent injunction against the petitioners pleading therein, that petitioner No. 2 had negotiated with him in the year 1977 to purchase Property No. 376/D-1, the name of late Muhammad Bux from Muhammad Ali and to transfer the lease out of the same to him for Rs. 30,003 He further pleaded, that he had paid Rs.
15,000 to late Muhammad Bux, through petitioner No. 2 on 3rd July, 1979, and later on had paid the balance amount by instalments and that late Muhammad Bux, although was agreeable to finalize the transaction, failed to do so due to his death on 20th July, 1980, hence the petitioners are liable to execute a sale-deed in his favour. He also prayed for an injunction against the petitioners for restraining them from pursuing against him ejectment proceedings before the Rent Controller.
4. That tenant Abdul Waheed did not remain satisfied with the proceedings in the suit, hence a criminal case on 28th January, 1981, through his wife Mst. Tasneema Bano was filed, under sections 406, 420, 506/34, Pakistan Penal Code, in the Court of learned A. C. M. And First Class Magistrate, Soldier Bazar Brigade, Court No. V11, Karachi.
5. The respondent No. 2 repeated practically the same story of sale of property as in a suit filed by her husband Abdul Waheed and produced the photostat copy of receipt of Rs. 15,000 purported to have been signed by respondent No. 2, at the time of alleged payment of Rs. 15,000 to late Muhammad Bux on 3rd July, 1978, and stated that the applicant's on 26th January, 1981 at about 7 p. m. Came to the respondent No. 2, house and threatened to get the possession of the premises, by killing the complainant, her husband and her children and demanded the withdrawal of the suit, hence the complaint under sections 406, 420, 506/34.
6. That the learned Magistrate recorded the statement of the complainant under section 200, Cr: P.
C. On the same day i.e. 28th January, 1981, and of her husband Abdul Waheed and Mst. Lqbal Bano on the following day i.e. 29th January, 1981 and hurriedly issued bailable warrants against the petitioners on 31st January, 1981, as 30th January, 1981 was Friday, holiday, according to the applicants.
7. It is noteworthy, that one statement was shown to have been made on 29th January, 1981, by P.
W. Mst. Iqbal Bano before the learned Magistrate and the learned Magistrate is said to have attested her signature, on the statement, but there is no such signature on the statement, which lead to a reasonable presumption and belief, that the statement was a concoction, according to applicants.
8. In view of the above factum the petitioners have filed the above petition, on the grounds mentioned in the above petition.
9. The learned Advocate for the respondent No. 2 at the out set raised objection to the maintainability of the above application, in view of the decision of the Hon'ble Supreme Court reported in 1979 SCMR 94, as appellants have not moved application under section 249-A, Cr. P.
C., before coming to this Court and further submitted, that the complaint in question was filed under section 406, P. P. C., and section 506, P. P. C., for criminal intimidation and as such it cannot be said to be one arising out of civil disputes between the parties, only and as such the said proceedings cannot be quashed, without respondent being permitted to lead evidence and prove her allegations. In support of this contention of his, the learned counsel for the respondent No. 2 relied upon cases reported in 1979 SCMR 437, 1978 SCMR 183 and 1980 SCMR 843.
10. The learned Advocate for the applicants in reply to the above submissions of the learned counsel for respondents, submitted, that complaint in question is mala fide and has been filed in respect of dispute relating to civil nature, for which civil litigation is pending between the parties.
The learned Advocate for the applicants further submitted, that the amount involved in the complaint in question is said to have been paid to the husband of applicant No. 1, in respect of alleged agreement of sale in respect of property bearing No. 376/13-1 Khudadad Colony and as such the present applicants cannot be accused of having misappropriated the said amount, after the death of appellants No. 1's husband Muhammad Bux. He further submitted, that the order dated 31st January, 1981 of the learned trial Court clearly shows, that cognizance of the complaint has been taken primarily on the basis of the alleged allegations of criminal misappropriation of the amount paid to late Muhammad Bux and there is nothing in the said order to suggest, that complainant had prima facie even proved her allegations in respect of criminal intimidation. The learned Advocate for the applicants further submitted, that applicant No. 1, who is the real and original owner of property in question had filed application for ejectment of the husband of respondent No. 2, on 2nd February, 1982 and it was after this, first suit No. 331/81 was filed by the husband of respondent No. 2, for specific performance of alleged sale agreement, between the husband of applicant No. 1 and husband of respondent No. 2 and after filing of this false suit, a private complaint under section 406/506/34, P. P. C. Was filed on 28th January, 1981 by respondent No. 2, against the present appellant, ma a fidely to coerce the applicants to withdraw the ejectment proceedings, here before mentioned. In view of this the learned Advocate for the appellant submitted, that the criminal proceedings filed by respondent No. 2 are mala fide and as such the above application is maintainable, in spite of applicants having not filed application under section 245-A, Cr. P. C. Before coming to this Court under section 561-A, Cr. P. C. In support of this contention of his the learned Advocate for the applicants relied upon cases reported in PLD 1977 Lah. 375, 1980 P Cr. L J 353, 395, 905 and unreported judgment of this Court in Cr. Miscellaneous Appeal No. 783/80.
11. I have carefully considered the above submissions made by the learned counsels and have gone through the complaint and orders passed thereon, by the learned trial Court on 31st January, 1981 as well as through the authorities relied upon by the respective learned counsels.
12. The reading of orders dated 31st January, 1981 of the learned trial Court shows, that the processes against the applicants have been primarily issued, on the basis of the allegations of amount misappropriately made in the complaint, although reference to the alleged criminal intimidation is also made and actually cognizance of the com--plaint is taken under section 406/506/34. P. P. C. Even the reading of complaint shows that main emphasis of the complainant in the said com--plaint is about alleged misappropriation of the sum of Rs. 30,000 said to have been paid to the deceased Muhammad Bux by her husband. It is significant to note, that in para. 10 of the complaint a vague allegations is made about the allege threat or intimidation against the applicants, without mentioning the names of witnesses, in whose presence the said threat was made. However, in the order of the learned Magistrate dated 31st January. 1981 it is clearly mentioned, that from the evidence produced before him, the alleged threat was given to complainant's husband, when he contacted the applicants for money in question. If this was so, why did not complainant's husband file the complaint in question, requires consideration. It seems that the complainant's husband for the reasons best known to him refrained from filing the complaint and has put forward the respondent No. 2 to do so. This conduct of the complainant's husband clearly shows mala fide intentions of his, in setting up his wife respondent No. 2, to file the complaint in question, when prima facie it is clear from the orders dated 31st January, 1981 of the learned trial Court, that no allege threats were directly given to the complainant-respondent No. 2, and allege amount of Rs. 30,000 allegedly misappropriated by applicants belong to the husband of the complainant. It is obvious from these facts, that the complaint was A prima facie mala fidely instigated by the husband of the complainant, respondent No. 2, to pressurize the applicants to settle civil disputes between the parties, in my opinion. In view of this the decision of the Hon'ble Supreme Court reported in 1979 SCMR 94, would not be applic--able to the above application, as held in unreported Judgment of this Court given in Cr. Miscellaneous Application No. 783/80.
Therefore, I hold that the above application is maintainable and preliminary objections of respondents are overruled.
13. The next question that now requires consideration is whether filing of the complaint in question amounts to abuse of the process of the learned trial Court and as such liable to be quashed under section 561-A, Cr. P. C.
14. In view of my above conclusions, while dismissing the prelimi--nary objections raised by the learned Advocates for the respondents, that complainant in question has been filed prima facie mala fidely at the instigation of the husband of respondent No. 2, by her and in view of the fact, that primarily dispute between the parties is in respect of sale agreement of the house in question and allege misappropriation of sum of Rs. 30.000 in that connection, for which already respondent No. 2's husband has filed civil suit No. 331/81 for specific performance and permanent injunction against the present applicants, in the Court of VII Sr. Civil Judge at Karachi, which is pending and in view of the fact, that allege threats and intimidation was given to the husband of respondent No. 2.
As mentioned in order dated 31st January, 1981 of the learned trial Court and since complaint does not disclose the name of Mst. Iqbal Bano as witness to such allege threats. ~ I am of the opinion, that filing of the said complaint and issue of processes amounted to abuse of the process of the learned trial Court. It may further be noted that 9 out of 11 witnesses mentioned in the list of witnesses given at the bottom of the complaint, are witnesses in respect of alleged sale transaction, as mentioned in the copy of the plaint suit No. 331/81, which is on file. According to the endorsement dated 29th January, 1981 of the learned trial Court on complaint in question, the only two witnesses were produced namely P.W. Abdul Waheed, the husband of the respondent No. 2 and P. W. Mst. Iqbal Bano, in whose presence it is alleged, that the threats in question were extended. I have gone through the statement of these witnesses which are available in R and P of the learned trial Court, in which both these witnesses have given a specific date, on which the threats in question were advanced to the complainant in their presence, but this fact has not at all been mentioned in the said complaint and it seems, that in order to support the complaint in question, the complainant has tried to improve her case, otherwise there is no reason why, the alleged incident which is supposed to have taken place on 26th January, 1978 was not clearly and specifically mentioned in the complaint itself alongwith name of P.W. Mst. Iqbal Bano. Be as it may be, the preliminary inquiry conducted by the learned trial Court clearly shows, that the main grievance of the complainant is regarding alleged misappropriation of Rs. 30,000 of her husband, which admittedly were not paid to the applicants, but were in fact paid to the deceased Muhammad Bux, by her husband and not by her.
15. Therefore, in view of my above conclusions, I am of the opinion, that filing of the complaint in question was at the instigation of the husband of complainant to pressurise the applicants, while he remained behind the scene, as he had filed civil suit No. 331/81 in respect of the allege transaction of sale between himself and deceased Muhammad Bux, s against the present applicants, after the death of said Muhammad Bux and, therefore, issuance of processes thereon amounted to abuse of the process of the learned trial Court and as such, I quash the proceedings pending against present applicants under section 406,; 506- 34, P P C in the Court of Magistrate 1st Class, Soldier Bazar/Brigade, Karachi East.