By this application, the applicant S. M. Waqi has sought quashment of the criminal case pending against him in the Court of Honorary First Class Magistrate, Sanghar.
2. The facts leading to filing of this application are that direct complaint has been filed by Our - Muhammad respondent No, 2 against the applicant who is employed in the Seimen's Pakistan Engineering Company Limited as an Assistant Commercial Officer since 1st January, 1969. It is alleged in the direct complaint that the cattle purchased by the said respondent at Sanghar cattle pin I were entrusted by him to the applicant and two co-accused Anwar Muhammad and Mir Muhammad for being taken in their truck to Karachi, for delivery to one Rustam living at Bhens colony. However, the cattle were not delivered to the said Rustam by the accused who became acarse (?) and the complainant was unable to locate them. After some time when the complainant established contact with the accused they told him that they had sold the cattle and spent the money realized from their sale. They however promised to arrange for their restoration provided the complainant did not file any case against them. Their suggestion was not acceptable to the complainant who therefore made applications to the Police Officers in Sanghar as well as in Karachi where upon the accused were even called at Police Stations but somehow no legal action was taken against them. Thereafter the respondent No, 2 filed the direct complaint in the Court of District Magistrate, Sanghar which was ultimately endorsed to Honorary First Class Magistrate Sanghar for disposal. The learned Honorary First Class Magistrate after holding preliminary enquiry brought the case on file and issued process against the applicant and other two co-accused under section 420/406, P. P. C. It is against these proceedings that the present application has been filed.
4. ,Mr. Makhdoom Abdul Wali appearing on behalf of the State raised a preliminary objection that the present application is not maintainable because before invoking the extraordinary jurisdiction vested in this Court under section 561-A, Cr. P. C., the applicant was required to move the lower Court under section 249-A, Cr. P. C., which he has not done. In support of his contention he has relied upon Khushi Muhammad and 4 others v The State wherein the authority reported as Ghulam Muhammad v. Muzamil Khan has been taken note of. Following observations have been made in the latter case :- "The inherent jurisdiction given by section 561-A, Cr. P. C. Is not an alternate jurisdiction or an additional jurisdiction but is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of Criminal Procedure as laid down in Procedural statutes."
5. In view of the above observations, it was argued before the Supreme Court in the case of Khushi Muhammad that alternate remedy being available to the petitioners by way of section 249-A, Cr. P.
C., resort could not be made to provisions of section 561-A, Cr. P. C. The argument was held to have force and consequently, the High Court's order dismissing the quashment petition was upheld.
6. In reply to the arguments of the learned State counsel, the learned counsel for the applicant has placed reliance on the Single Bench authority of this Court reported as Hussain Bux and others v.
Noor Muhammad and another , contending that the Supreme Court authority referred to above was also cited in the case before the Single Bench but it was held that to be applicable in that case. I have gone through the aforesaid Single Bench authority. It appears that the facts of the case covered by the authority are totally different. In that case the parties were admittedly closely related and their relations were strained on account of matrimonial dispute inter se and that on account of the said matrimonial dispute some litigation had taken place between the parties. That is however not the position in the case under consideration. In the instant case it is yet to be shown that the complainant has acted on instigation of the party, who is engaged in litigation with the applicant and therefore is inimical towards him. Thus the Single Bench authority is not applicable in this case. It was further submitted by the learned State counsel that in view of the fact that the direct complaint filed against the applicant has been brought on record only after holding preliminary enquiry, it would be premature to determine the truth or falsity of the complaint at this stage and as such the present application merits dismissal also on that ground. In support of this arguments the learned State counsel relied upon Wajahat All v. Ali Gohar Shaikh and another wherein it was held :- "On consideration of these contentions it will suffice to say that at this stage it is neither possible nor desirable to determine the truth and the falsity of the allegations made in the complaint or the pleas taken by the applicant. The applicant shall have ample opportunity to defend the proceedings and vindicate his position when the trial takes place. The learned Magistrate had held a preliminary inquiry and finding it to be prima' facie case issued process. In this connection it would be advantageous to refer to two authorities of the Supreme Court reported in PLD 1967 SC 317 and 354. Keeping in view the principles laid down in these two authorities I find no substantial reason to quash the proceedings."
7. The learned counsel for the applicant was unable to meet the above objection of the learned State counsel. All what he emphasized was that the allegations contained in the direct complaint are totally false and are the result of the applicant's enmity with Nazir Muhammad son of Haji Muhammad Ramzan. According to him the respondent No, 2 happens to be related to the said Nazir Muhammad, at whose instigation he has filed the direct complaint against the applicant. To prove his point, the learned counsel made reference to Annexures 'B' and 'C' on the record. It is no doubt disclosed in these annexures that civil litigation has taken place between the applicant on1 2 3 4 one hand and Nazir Muhammad on the other. But excepting the applicant's solitary word there is nothing to indicate that the respondent No, 2 who has filed the direct complaint is in any way connected with Nazir Muhammad. No direct enmity with the respondent No, 2 has been alleged by the applicant. Moreover the learned trial Court issued the process afte satisfying itself about the truth of the allegations by holding a preliminary enquiry.
8. In the above circumstances the proper course will be that the law should take its own course and the impugned case be heard by the trial Court who after recording the evidence will be in a better position to formulate its opinion about truth or otherwise of the allegations. There being no merit in the application, it was dismissed by short order dated 30th August, 1983 for reasons to be recorded separately. Above are the reasons for the said order. 1979 SCM R 94 PLD 1967 SC 317 1983 P Cr. L J 1585 1971 P Cr. L J 1061