' Muhammad Younus a Kiln Contractor applied on 15-4--1981 to the Superintendent of Police, Vehari, complaining that about three months ago Sufi Ghulam Rasul, herein petitioner, and 4 others had taken different amounts from him by way of Amanat in the presence of Muhammad Shafi and Qasim P.Ws. having promised to return the same on demand. The petitioner and his companions, later on, shifted their residence from Chatta Mauj Din and went to Chak No,16/W.B. The respondent approached them and asked for the return of money but they put him off on one excuse or the other. He was, therefore, obliged to file an application against them to the Superintendent of Police, Vehari, who got a case under section 406, P.P.C. registered at Police Station City Vehari vide F.I.R.
No,65/81, dated 19-4-1981. After usual investigation the police put up Chillan against the petitioner and his companions in the Court of Ilaqa Magistrate, Vehari, for trial.
2. The learned Magistrate having framed the formal charge against the petitioner and his companions recorded the statement, of Muhammad Younas P.W.1 and Muhammad Yousaf P.W.2 on 13-2-1982. A perusal of the statements of these witnesses shows that the respondent had paid different amounts to the petitioner and others as advance for working at his kiln as brick molder (Pathaira). In view of these statements the petitioner moved an application under section 249-A, Cr.P.C. before the trial Magistrate praying that the petitioner be acquitted because the case was one of Civil nature and involved no criminal liability. It was also pointed out that previously the respondent' had filed a writ. petition in the High Court, on the same facts seeking a direction for registration of a case but that was dismissed on 4-4-1981 with the following observation by a learned Judge of this Court: "It is a simple case for the recovery of money advanced. No direction is needed for registration of a case. The petitioner may move the Civil Court. This petition is, therefore, dismissed."
3. The learned trial Magistrate having heard the arguments dismissed the petitioner's application made, under section 249-A, Cr.P.C. with the observation that the evidence recorded in the Court has connected the petitioner with the offence. Being aggrieved the petitioner filed the instant petition praying for the abashment of the proceedings pending against him under section 406, P.P.0 in the Court of Magistrate Ist Class, Vehari.
4. I have heard the learned counsel for the petitioner as well as for the respondent and also gone through the record.
5. The statements of the P.Ws. clearly show that the petitioner and his companions had received money from the respondent/complainant as advance for doing labour at his kiln but after working for some days there, they ran away. It means that they did not perform the part of the contract.
These statements, in any view do not disclose the commission of an offence. Apart from it respondent's petition (W. No, 325/8 based on the same facts, seeking direction for registering a criminal case against the petitioner and his companions was dismissed by a learned Judge of this Court with the following observation: "It is a simple case for the recovery of money advanced. No direction is needed for registration of a case. The petitioner may move the Civil Court. This petition is, therefore, dismissed."
In these circumstance, I am of the view that so long as the order of the High Court dated 15-4-1981 is in the field, no criminal trial on the basis of the facts alleged in the writ petition could take place against the petitioner and his companions. In my judgment, therefore, the impugned criminal proceedings pending against the petitioner and his companion before Mr.Zahid Hussain Kadri, Illaqa Magistrate Vehari, constitute abuse of process of Court and I have no option but to quash them, hence I . This petition, therefore, succeeds.
6.Before parting with this judgment, it may be observed that the learned trial Magistrate's conduct by having insisted to proceed with the trial despite the fact that the order of this Court dated 4-4- 1981 was brought to his notice, tantamount to committing contempt of the High Court. He is issued with a notice to explain as to why proceedings under Contempt of Court Act be not initiated against him. A separate file should be opened in the matter, and the office would list this matter in the 3rd week of March, 1982, positively.