This is an application under section 561-A, Cr. P. C. praying that proceedings in a case instituted on a private complaint against the applicant in the Court of Additional City Magistrate, Court No. XIII, Karachi be quashed.
2. The facts that have given rise to this complaint may be stated as follows:-- The petitioner Hyder Raza is an employee in Karachi Development Authority. The complainant Nasrullah Maftoon had succeeded in obtaining the allotment in respect of a plot of land from the K.
D. A. This allotment was in the name of Mst. Nazir Fatima, the wife of the complainant and it is not disputed that the complainant Nasrullah has been authorised to hie this complaint on her behalf.
3. After the allotment was obtained, the petitioner Hyder Raza induced complainant Nasrullah Maftoon to have the construction on the plot made through a firm carrying on business in the name of Messrs Raza & Co., and the admitted case is that this construction company is owned by Ali Raza, lt appears that a formal agreement was entered into which provided for construction of the house as per specifications and plans that had been agreed to between the parties and it is further the admitted case that a total amount of Rs. 23,900 was obtained by the father of the petitioner towards completion of the house.
4. The parties then came to a disagreement, because according to the complainant, the work executed was not according to the specifications. He, therefore, lodged the complaint alleging commission of offences under sections 420, 341 and 347, P. P. C. and the two latter sections were mentioned in the complaint because it was the case of the complainant that not only the work had not been done according to specifications, but he was also not allowed ingress in the premises which are the subject-matter of this case. This complaint was filed on 5-6-1968 and it appears that evidence was recorded and a charge against the petitioner was framed by the Magistrate on 18- 11-1969.
Thereafter, a Revision was preferred against the framing of the charge which came up before the Additional Sessions Judge, Karachi, who by a reasoned order dated 8-11-1971 dismissed the same.
No further revision was filed in this Court, but an application under section 561-A, Cr. P. C. has been moved.
5. The grievances of the petitioner may be summarized as below :--
(a) That complaint makes out no offence.
(b) That the matter was of a civil nature and a criminal Court has been utilized for the purpose of a cause if action of a civil nature, and that a civil suit on the same cause of action was filed and was pending.
(c) That the petitioner had nothing to do with the agreement which was entered into by the complainant with the father of the petitioner.
(d) That there being an arbitration clause in the agreement, a criminal case was not maintainable.
6. Coming to the first ground para. 9 of the complaint reads as follows :-- "That the accused have fraudulently received Rs. 23,900 out of agreed amount of Rs. 26,250 but have not constructed the bungalow according to the approved plan specifications and directions, and the construction has been left not even half done. Instead of Burma Teak Deodar wood has been used. There are frames without shutters. Mosaic flooring has not even commenced. The compound wall is without a gate and front wall. No electric work has been done at all, and 3 manholes are without covers. One water tank (over tank) has not yet been completed.
Underground water tank \ has been constructed in the verandah against the direction of the complainant and general practice. Besides there are a lot of irregularities and much of the work has been left incomplete."
These allegations made in the complaint clearly found an action in a criminal Court. Allegations were that instead of Burma Teak, inferior wood had been used and the Flooring had not even commenced, the compound wall was without a gate etc. These allegations clearly show that the work as executed was not as per specifications or to put it in other words the type of work done was inferior to the work for which payment had been obtained. In the face of these circumstances, it would be difficult to come to the conclusion that the provisions of criminal law would not be attracted. The trial Court had recorded evidence, and since copies of evidence have not been placed before me, I believe the same do not support the case of the petitioner.
7. The next contention that the petitioner had nothing to do with the contract is equally unfounded.
It is admitted case that the petitioner was an employee of K. D. A. and in that capacity he had induced the complainant to engage his father for execution of the construction. This by itself was wrong. Further to that it is also stated in the complaint that the petitioner had for the purpose of obtaining the contract for his father represented to the complainant that he would get him a loan from the House Building Finance Corporation. The complainant also states that although the agreement was signed by the father of the petitioner, but it was the petitioner who used to deal with the complainant, received payments etc. and negotiate the terms and conditions of the contract on behalf of the firm of his father. That being so, it cannot be said that the petitioner had nothing to do with the contract.
8. The other ground with regard to pendency of civil suit also does not advance the case of the petitioner. It is stated at the bar that copies of two plaints filed in the civil Court by either of the parties have been placed before me. On a perusal of these claims, the allegations of the complainant made in the complaint get strengthened and not weakened. All such allegations as are the foundation of the complaint are reiterated in the written statement and the counter-claim filed by the complainant out in the civil Court. The mere fact that civil suits are also pending between a the parties will not deprive the criminal Court of its jurisdiction and the authorities are not lacking for the proposition.
9. The last point urged on behalf of the petitioner is in connection with the arbitration clause contained in the agreement between the parties. While existence of an arbitration clause may serve the purpose under section 34 of the Arbitration Act for stay of civil suit, I cannot see how can existence of arbitration clause in a contract defeat a criminal case. This ground, too, is without substance.
10. Their Lordships had in a case reported in PLD 1967 SC 317 observe that the inherent jurisdiction under section 561-A, Cr. P. C. cannot be considered to be an additional or alternate jurisdiction.
Their Lordships were of the view that this Extraordinary Jurisdiction under section 561-A is preserved in the interest of justice to redress grievance for which no other procedure is available or has been provided by the Court itself. As already observed, the petitioner did not bring a further Revision against the order of the Additional Sessions Judge who rejected the application challenging the framing of the charge, but instead he has come to this Court under section 561-A, Cr. P. C. The scope of interference under section 561-A, Cr. P. C. is very narrow and 1 am clearly of the view that the complaint does make out an offence. As stated above, the copies of depositions of witnesses recorded in the trial Court were not placed before me and for that reason, I cannot evaluate the evidence. It would appear and I presume that had the petitioner placed the copies of depositions in this Court, the same might not have helped him. [22] I have stated in this order concerning the merits of the case shall Hyder Raza be kept out of consideration by the trial Court at the time of 'jyasruuafl this case. Maftoon