This is an application under section 561-A, Cr. P. C. For quashment of proceedings in a criminal case under section 420, P. P. C. Pending in the Court of Honorary Magistrate, Sanghar. Quashment is prayed on the grounds that the criminal case is false and applicant Fariduddin, who is accused in that case and against whom process is issued in the shape of bailable warrants is resident of Karachi and has never visited Sanjhoro in Sanghar District.
2. On two occasions before in the past application under section 561-A, Cr. P. C. Was dismissed and direction was given to the applicant to persue the remedy under section 249-A, Cr. P. C. Before the trial Court. First application was dismissed vide order dated 21st February, 1982 for the reason stated therein and the trial Court was directed to dispose of application under section 249-A, Cr. P.
C. Within a period of one month from the date of that order. This could not be done because applicant/accused sought adjournments and exemption from appearance. Second application was dismissed vide order dated 6th May, 1982 in which direction was given to the trial Magistrate to dispose of applicatidn under section 249-A, Cr. P. C. On 29th May, 1982. This was not done ostensibly for the reason that complainant moved an application for adjournment and stay of proceedings on the ground that he proposed to move for the transfer of the case from the Court of the Magistrate to another Court for the reason that he apprehended that justice would be done because Sahir Jalal brother of applicant was seen residing in the house of the Magistrate. Now third application under section 561-A. Cr. P. C. Has been moved in the same matter which has been admitted for regular hearing vide order of the learned Chief Justice dated 16th January, 1983.
3. Record of the trial Court is available which I have gone through with the assistance of the learned counsel present. Original complaint for offence under section 420, P.P.C. Written in Sindhi language is on the record in which it is stated that the complainant sells buffaloes in Karachi which he brings from Sanjhoro. In Karachi complainant met accused while travelling in a bus. Accused used to go to Sanjhoro in connection with purchase of carpets from there. It is further stated in the complaint that accused used to live in the house of the complainant in Sanjhoro whenever he visited there and borrowed Rs, 5,000 from him on the pretext of purchasing carpets, which amount complainant borrowed from Seth Qasim Ali. Accused promised to return the money but failed to do so. At the bottom of the complaint names of two witnesses are mentioned, who are Muhammad Ali and Talib-Hussain. It would be worthwhile to point out here about these witnesses that it is not specifically mentioned in the complaint that they were present at the time of transaction. The name of Seth Qasim Alifrom whom it is alleged that money was borrowed is not mentioned in the list of witnesses. The learned Magistrate held preliminary enquiry after which he issued process of bailable warrants for offence under section 420, P.P.C.
4. In the preliminary enquiry, complainant stated in his statement on oath that about 5 or 6 months ago accused borrowed Rs, 5,000, from the complainant in his house, which the complainant borrowed from Seth Qasim Ali and made payment to the accused in presence of witnesses. From this assertion it appears that the payment was not made in the house of the complainant but somewhere else where money was provided by Seth Qasim Ali. In the preliminary enquiry witness Talib Hussain has stated that about 5 or 6 months ago he went to the house of the complainant, where accused was sitting and in his presence complainant gave Rs, 5,000 to the accused and the accused promised to return this money after 15 days. This witness has mentioned the presence of the other witness Muhammad Ali. P. W. Muhammad Ali in his statement on oath also has stated that complainant gave Rs, 5,000 to the accused in the house of the complainant. This witness does not mention presence of Talib Hussain in the house of complainant when transacion took place.
Further both these witnesses have not stated any thing about money being borrowed by the complainant from Seth Qasim Ali. It is, therefore, clear that complainant and these two witnesses have contradicted each other and doubt cannotlA be brushed aside that the story is fabricated one.
5. Applicant/accused is present in the Court and he has explained that in Karachi he is doing business and met Hazoor Ahmad Khan, who is retired Assistant ,Mukhtiarkar. Applicant and Hazoor Ahmad Khan became friends and Hazoor Ahmad Khan advanced some money in partnership to set up a business for exporting carpets. The business did not do well and they fell out. Applicant told Hazoor Ahmad Khan to take away the money advanced by him after the sale of accessories but Hazoor Ahmad Khan is not prepared to do so and instead has filed a number of cases against him and in Sanjhoro District Sanghar, which has never been visited by the accused. It is further explained by him that Hazoor Ahmad Khan is resident of Sanjhoro and he has set up complainant Ahmad Ali against him to file this false case.
6. Mr. K. M. Nadeem has argued that this being false case as it appears from the statements of witnesses and complainant recorded in the preliminary enquiry, the proceedings in that case pending at Sanghar be quashed. He has cited the case of Mst. Nasreen Begum and others v.
Muhammad Younus and another . In the reported case also after the perusal of statements of witnesses in preliminary enquiry pending in the trial Court, it was found that no case was made out and the proceedings were quashed. Incidentally, criminal proceedings pending in the criminal Court in the reported case were under section 420, P.P.C. Additionally, it is submitted by Mr. K.M.
Nadeem, Advocate that if at all Hazoor Ahmad Khan has a grievance, he can file a civil case against the applicant.
7. For the facts and reasons stated above, I am of the view that no case is made out from the statements of.Complainant and witnesses recorded in the preliminary enquiry, which are contradictory in nature, hence the proceedings in the criminal case under section 420, P.P.C.1 Pending in the Court of Honorary Magistrate at Sanghar are hereby quashed. Application is allowed. 1975 P Cr. L J 647