Applicant above-named has filed the above petition for quashment of proceedings under section 448, P. P. C., pending against him in the Court of A. C. M. (C. I. A.) South, Karachi, on the following facts and grounds.
2. The applicant is a tenant in respect of godown premises No. G-7, Roopchand Belaram Road (Robson Road), the building is owned, by Mst. Hajra B.-gum, wife of Mr. Intezar Hussain and step-mother of the apple--cant.
Originally Mr. Intezar Hussain was carrying on the business of renting out Shamianas, crockery etc. Under the nam: and style of Wajahat Brothers and a furniture Mart under the name of Ahmedia Furniture. In this business (Wajahat Brothers) some time Mst. Hajra Begum was there as a partner. At that time the business of Wajahat Brothers was being carried on at the premises referred to above. After Mst. Hajra Begum retired from partnership, the applicant took the premises on rent. This arrangement was made only to assist Mst. Hajra Begum. As she and the applicant lived in the same house and the relations were that of a mother and son, no formal agreement of tenancy was written nor any rent receipts were taken.
3. This arrangement continued in a peaceful manner till 1978, when two persons namely Mr. Amjad and Mr. Sabir became the servants of Mr. Intezar Hussain till the business of Ahmed a Furniture Mart was wound up and thereafter, they continued to serve Mr. Intezar Hussain in a casual manner, to look after the furniture rented out to various offices. As such, casual servants they would come to give report and they were also doing their independent work. In the year 1978, a conspiracy was hatched between (1) Mst. Hajra Begum, (2) Sabir and Amjad and (3) a firm of con--tractors (R. W. Contractors). These persons conspired to deprive the applicant of the above premises and secretly without any notice to the applicant, prepared certain forged documents showing Sabir and Amjad as tenants and an agreement between Met. Hajra Begum and R. W. Contractors was written. M/s. Sabir and Amjad agreed to hand over the posses--sion of the said godown, they had no authority.
4. At this stage the news of this arrangement leaked out, Mst. Hajra Begum and M/s. Sabir and Amjad started putting pressure on the applicant to vacant the premises. When threats were extended and the applicant feared, that they may taken the law into their hands, and to protect his lawful possession of the said premises the applicant filed a suit in the Civil Court being Suit No. 3694/78 and obtained an order for maintaining status quo.
This order was vacated, as appeal was filed, again an order for maintaining status quo was obtained. The learned Additional District Judge dismissed the appeal by judgment dated 14th May, 1979. The relevant portion of the above judgment is reproduced hereunder :- "The appeal has no merits which is accordingly dismissed. However the civil proceedings would not interfere with the action of Police with regard to trespassing, if committed by any of the two parties and the Police would be at liberty to go ahead with prosecution, if warrant--ed by evidence."
5. As a result of the above observations of the learned Additional District Judge, Mst. Hajra Begum filed a complaint against the applicant and his brother the respondent No. 2 and the Police felt bound by these observations, conducted one-sided enquiry, and sent a challan in the Court of Mrs. Farhat Rashid, A. C. M., Karachi.
6. Against the judgment dated 14th May, 1979, by the learned Additional District and Sessions Judge, a revision was filed by the applicant in the High Court, which was numbered as Revision No. 158/79. This revision application came up for hearing before Mr. Justice S. A. Nusrat, who was pleased to set aside judgment dated 14th May, 1979, and confirmed the injunction, by judgment dated 26th January, 1980.
7. In the course of Civil Proceedings, the possession of the said premises by Intezar Hussain was admitted up to May, 1977, vide counter-- affidavit of Hajra Begum, but Mr. Intezar Hussain has asserted, that the applicant is the tenant and the possession is continuous. Mr. Intezar Hussain made an application under Order I, rule 10, C.
P. C.
8. In the year 1979 and before the filing of F. I. R. By Mst. Hajra Begurn M/s. R. W. Construction filed a suit being Suit No. 836179 against Mst. Hajra Begum and the present applicant under section 9 of the Specific Relief Act, wherein the possession of the premises in question was sought. This suit is being contested by the applicant.
9. As Civil litigation involving common points was pending much before the filing of F. I. R. And Challan an application was filed before the learned A. C. M. To stay the proceedings of the case, under section 448, P. P. C.
Or adjourn the case sins die to see the results of the civil pro--ceedings. It was also urged that no criminal case was made out and thus the applicant may be acquitted, as there was no possibility of applicant being convicted.
The learned Magistrate dismissed the applications by order dated 2nd March, 1980.
10. In view of the above facts, applicant has filed the above petition for quashment on the grounds mentioned in the memo. Of Petition.
11. The learned Advocate for the applicant in support of the above petition submitted as under :-
(a) Complaint lodged by Mst. Hajra Begum against the applicant and respondent No. 2 under section 448, P. P.
C., is male fide, as already civil litigation in respect of the premises in question were pending between the parties.
(b)The version as given in F. I. R. Dated 27th May, 1979 shows that complainant was not in physical possession of the premises, as she alleges therein, that possession of the premises was handed over to M/s. R. W.
Construction Co. On 17th September, 1978, by her and as such aggrieved party, if any, for alleged trespass was M/s. R. W. Construction Co. And not the complainant, for Court, which is said Company has filed S. No. 836/79 in competent civil Court, which is pending.
(c) That alleged trespass was committed according to F'. I. R. On 21st December, 1978, but F. I. R. In question was lodged for the first time on 27th May, 1979, after delay of nearly 5 months.
(d) That there exists order passed by this Court in Civil Rev. App. No. 158/79 dated February, 1980, Exh. E.
According to this status quo order dated 21st December, 1978, passed in S. No. 3694 of 1978 filed by the applicant was restored and as such possession of the applicant in respect of the premises in question is legal and consequently question of applicant and respondent No. 2 having committed alleged trespass does not arise.
12. In view of above contentions, the learned Advocate of the apple--cant submitted, that filing of complaint under section 448, P. P. C. And issuance of process against the applicant and respondent No. 2 amounted to abuse of the process of the learned trial Court and consequently said proceedings are liable to be quashed by this Court. In support of above contentions, the learned Advocate for the applicant relied upon cases reported in PLD 1982 Kar. 149, PLD 1981 Kar. 511 and 1976 P Cr. L J 195.
13. No one appeared on behalf of the State. I have heard the learned Advocate for the complainant as well.
14. I have taken into consideration the above submissions made by the learned Advocate for the applicant and have gone through the various annexures filed with the above petition and F. I. R. I have also carefully gone through the various authorities cited by the learned Advocate for the applicant.
15. I find great force in the contentions raised by the learned Advocate for the applicant. F. I. R. Clearly shows, that complainant was not in possession of the premises at least since 17th September, 1978 and alleged trespass is said to have been committed on 21st December, 1978, whet, the said premises according to complaint were in possession of her alleged tenants M/s. R, W. Construction Co. The status quo order dated 21 December, 1978, in favour of the applicant was restored by this Court in February, 1980 and admittedly civil litigations are pending between the Parties in respect of the premises in question, much prior to lodging of F. I.
R. In question. In addition to this there was a delay of nearly 5 months in lodging of F. I. R. In question. All these facts on record clearly show, that the purpose of filing complaint under section 448, P. P. C against the applicant and respondents No. 2 was to pressurise them to settle the civil dispute, in respect of which civil suits are pending between the parties, in competent civil Court. In view of this conclusion of mine, authorities cited by the learned Advocate for the applicant are applicable to the present case.
16. In view of above facts, I am of the opinion, that complaint in question was filed mala fildely in order to pressurise the applicant and his brother respondent No. 2 to settle the civil dispute, in respect of which civil suits were pending between the parties and as such initiating of the said proceedings under section 448, P. P. C.
Amounted to abuse of the pro--cess of the learned trial Court.
17. Therefore, I allow the above petition and quash the proceedings pending against the applicant and respondent No. 2 under section 448, P. P. C., in the Court of A. C. M. (C.
1. A.) South, Karachi, in respect of F. I.
R. No. 109/79, dated 27th May, 1979, and discharge the bail bonds executed by applicant and respondent No. 2.