This petition seeks the quashment of proceedings under section 420, P. P. C. Which are presently pending against the petitioners in the Court of Civil Judge, and First Class Magistrate, Ghotki, District Sukkur.
2. The admitted facts of the case are that petitioner No. 1 had the verified claim in regard to 36,000 produce index units of agricultural land. Against this claim he was allotted the requisite land at Punnu Akil, District Sukkur, in the year 1960-61. Cut of this land he sold to the respondent 75 acres by a registered sale deed dated the 7th of September 1960, and also gave him the possession.
However, on the 1st of September 1961 Martial Law Regulation No. 89 (hereinafter called the Regulation) was pro--mulgated and in terms of paragraph 14 thereof certain sales, whether effected before are after the coming into force of the Regulation, were declared void. The further effect of the Regula--tion was that the original entitlement of the claimants, including the petitioner, was substantially reduced and in the result he was required to surrender the excess land to the authorities. In obedience to the requirements of this Regulation, the petitioner surrendered the land of the respondent and also other land which he had sold to certain other persons, which gave rise to civil and criminal proceedings, between them. The respondent first tiled a civil suit against petitioner No. 1 on the 12th of November 1963, for declaration that he could not validly surrender his land to the authorities, and during the pendency of this suit he also instituted criminal proceedings against the both petitioners under section 420, P. P. C. The suit of the respondent was dismissed by the trial Court and his learned counsel stated at the Bar that no appeal was filed against that judgment. The complaint elf the respondent was also dismissed for non-prosecution on the 30th of June 1965, but the respondent tiled fresh proceedings, against the petitioners which were dismissed on the 14th of May 1966. Not being satisfied, the respondent yet instituted fresh proceedings, against the petitioners in which the learned trial Magistrate issued non-bail-able warrants for the arrest of the petitioners and it is against these proceedings that the present petition has been filed.
3. I have heard Mr. Munir Hussain, the learned Advocate for the Petitioners, and Mr. M. G. Cheema, the learned counsel for the respondent. The learned Advocate, for the petitioners argued that upon the facts alleged in the complaint no case can be said to have been made out against the petitioners under section 420, P. P. C. And consequently, to allow the criminal proceedings, to continue against them, would amount to an abuse of the process of the Court. In support of this contention, the learned counsel referred to the certified copy of the plaint of the respondent in which petitioner No. 1 alone was impleaded as defendant. He, therefore, argued that the subsequent complaint filed by him, in which petitioner No. 2 was made a co-accused with petitioner No. 1, not clearly recoiled on the bona fides of the respondent but also indicated that lie was out to harass both the petitioner. By examining the copy of the plaint, which is Annexure on record the contending of the learned counsel appears to plainly valid. After having of the learned unseal examined the copy of the plaint I found that not only no mention of the name of petitioner No. 2 is made therein but that the entire allegations made in it are against petitioner No. 1. In this view, the con--clusion becomes irresistible that the addition of the name of petitioner No. 2, in the complaint subsequently filed by the respondent was clearly an afterthought and the object appears to be to harass the petitioners who inter se are related as father and son conclusion also finds support from the complaint itself Annexureon record in which all that is alleged against petitioner No. 2, is that he was the son of petitioner No. 1. And used to at as his attorney in regard to the management of his lands. However, it is nowhere alleged in the complaint that petitioner No. 2, was either responsible .For bringing about the original contract between his father and the respondent or that the had at any stage offered any inducement to the respondent that his land, which was surrendered by his father to the authori--ties would be restored to him it would therefore, follow that so far as petitioner No: 2 is concerned, he has been arraigned before the Criminal Court for no valid reason.
4. The learned counsel for the petitioners next argued that the land of the respondent vas surrendered in obedience to the requirements of the Regulation and consequently it cannot be that the petitioner had committed any offence. In support of this contention he referred to paragraph 5 of the Regulation by which the original entitlement of petitioner No I, was reduced to 2150 produce index units plus. Percent of the entitlement In excess of 4000 units, He therefore argued that the petitioner was required to surrender to the authorities, the bulk of land amounting to about 3104 produce index units in terms, of paragraph 8 of the Regulation and thatin this respect he had no choice The learned counsel then referred to paragraph 14 of the Regulation, which being relevant to the present controversy, may be reproduced :- "14. The transfer of any land, in respect of which an allotment has been made or the creation of any right or interest, in or encumbrance on, such land, made in any manner whatsoever before or after the commencement of this regulation by or on behalf of any allottee shall be void to the extent to which the area is in excess of the area to which he is entitled under the fresh allotment under paragraph 7.
(2) If any question arises whether the transfer or creation of any right, interest or encumbrance is void under subpara--graph (1) the question shall be referred to the Chief Settlement Commissioner, or to an officer authorised by him, whose, deci--sion thereon shall be final."
By examining the language of paragraphs 5; 8 and 14 of the). Regulation, the contention of the learned counsel. Appears to have force. Not only this, but he correctly pointed out that according to the respondent himself the petitioners have sold his land to other persons, as well and it is nowhere alleged in the complaint that they had retained any land for their own use. From this, the learned counsel rightly argued that the complaint was filed simply to harass the petitioners and further to believe that the petitioners had promised the respondent that his land would be restored to him cannot be believed.
5. The learned counsel for the petitioners next argued that in the complainant of the respondent it is nowhere alleged that the respondent was offered any inducement by the petitioners with a view to seeking his consent to enter into the original contract of sale and consequently they cannot be said to have committed any 'offence within the meaning of section 420, P. P. C. Even assuming that When they surrendered the land of the respondent to the authorities, they had promised that the land would be restored n to him: This contention is also not without force, ,firstly because it is supported by 'the language of section 420, P. P. C. And secondly because the contract of sale was entered into one year before the coming into force of the regulation and, therefore, it would be impossible to believe that `the petitioners could have induced the respondent to enter into the said contract in the belief that it would be frustrated by the coming into force of the said regulation on a future date.
6. The learned counsel for the petitioners next argued that petitioner No. 1,. Who had actually sold the land to the respon--dent, has since expired and consequently the criminal proceedings, have become infructuous. Mr. Cheema the learned, counsel for the respondent, disputed this position, but I would rather accept the statement of the learned counsel for the petitioners, who stated at the Bar that he was the son-in-law, of petitioner No. 1, and would not make a false statement that he has already died. 1n this view,' the criminal proceedings, against the petitioners would be deemed to have become infructuous and it would be futile to allow them to continue.
7. Mr: Cheema, was not satisfied with this conclusion and contended that notwithstanding the death of petitioner No. 1 the criminal proceedings, in the trial Court cannot he said to have become infructuous, as petitioner No. 2, is the co-accused in those proceedings. When questioned as to how petitioner No. 2, can be said to be a co-accused, all that Mr. Cheema, was to refer to the copy of the complaint (Annexure 'K') in which it is alleged: that the petitioner No. 2 was the son of petitioner No. 1 and acted as his attorney regarding the management of land, surely, this would not suffice to hold that petitioner No. 2, is the co---accused, as it is nowhere alleged in the complaint that he was, in any way, responsible either for bringing about the original trans--action between the parties or had, at any stage, induced, the respondent, that the land .Surrendered by his father would be restored to him.
8. There is another difficulty in the way of the respondent and it is this that according to sub- paragraph (2) of paragraph 14 and paragraph 15 of the regulation, all questions arising. In regard to the transfer or the creation of any right, interest or encumb--rance shall be transferred to the Chief. Settlement Commissioner whose decision shall be final and further that the jurisdiction Commissioner all Courts, including the High Court and Supreme Court is com--pletely barred respectively any such question. This being the policy of the regulation, it would follow that no criminal pro--ceedings could be encouraged in regard to any such question, and the aggrieved person must approach the Chief Settlement Commissioner. In any case in so far as the facts of this cases are concerned no case is made out against the petitioners under section 420, P. P. C and consequently to allow the criminal proceedings to continue in the trial Court would clearly amount to an abuse of the process of the Court. Apart from this position Mr. Cheema, the learned counsel, admitted, before me that the Chief Settlement Commissioner has sine been approached for the adjudication of the dispute and, procee0ings in that regard are pending before him. If this be so, than the respondents has resort-d to the only feasible remedy provided by the regulation and consequently the criminal 'proceedings, instituted by him against the petitioners would appear to be futile.
9. Mr. Cheema, the learned counsel for the respondent lastly argued that the jurisdiction of this Court under sec--tion 561-A Criminal Procedure Code, should not be lightly resorted to in view of the judgment of the Supreme Court of Pakistan in the ease of Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 SC-317) and, therefore, the petitioners are not entitled to any relief in these proceedings. There is no dispute in regard to the correctness of the contention of the learned Counsel, but it cannot be disputed that every case has to be decided on its own facts. It is well established that if upon the examination of the complaint, and assuming 'hat all the allegations made therein are true, the Court comes to the conclusion that it could not possibly end in the conviction of the accused, then to allow the proceed--ings to continue would be a sheer waste of the and they should be quashed. Applying this principle to the facts of the present case, I am satisfied that even if the facts of .The complaint are assumed to be true, even then the petitioners cannot conceivable be convicted of the charge under section 420, P. P. `C. And con--sequently it would serve no one's purpose to allow these proceed--ings, to continue in the trial Court. This would be particular so, when, it is considered that petitioner No. 1, has already expired and the complaint nowhere makes any allegation against petitioner No. 2 that he was in any way, concerned with the dealings between the deceased and the respondent in regard to the disputed land at any stage whatsoever.
10. In view of this discussion, I am satisfied that it is a fit case in which jurisdiction under section.
561-A, Criminal Procedure Code, should be exercised. I, therefore, allow this petition and direct that the proceedings pending in the Criminal Court would stand quashed as prayed.