The petitioners seek a quashment of the proceedings before the learned Sub-Divisional Magistrate, Jacobabad on a private complaint lodged by Abdul Haque son of Rehimbaksb Abbasl (respondent). This complaint, a copy whereof has been placed on the record of this case, purports to have been drawn under section 406/420, P. P. C. The case set up in the complaint briefly is that on 15th of August, 1969 the accused (the present petitioners) who are described in the complaint as fishermen, had gone to Jacobabad and negotiated a sale of fish to the complainant at Jacobabad. The accused, it is alleged, received from the complainant a sum of Rs. 3,000 for supply of fish to him up to 1-9-1969, but no fish was actually supplied. A letter by complainant to the accused did not bring forth any response. The complainant eventually saw the accused at Karachi and discussed the subject with them. They kept him on promises of returning the money but finally informed him that they would neither refund the money nor would supply the fish. Thus it was alleged that the accused had committed offence under section 4 '6/420, P. P. C. within the jurisdiction of the Jacobabad Court.
2. On the basis of the above facts the learned S. D. M. issued bailable warrants of arrest against the petitioners in the sum of Rs. 3,000 each. The petitioners have furnished the required security.
3. The petitioners state that they own a couple of fishing launches which they operate in the Arabian Sea but dispose of their whole catch through public auction carried out by Pathan Mole & Company and that they never deal directly in the sale of fish. They however contend that they live in village Rehri near Ibrahim Hyderi and have never in their lifetime visited Jacobabad nor did they know Abdul Haque, the respondent (complainant). It is further urged that the months of June, July and August are non-fishing months and in any case small launches such as these owned by the petitioners could not venture the high seas in these turbulent months. The suggestion is that no such contract could, in the circumstances, have been made. It is also explained that sea fish from Karachi is never sold in far-flung places like Jacobabad as the fish become stale in the time it takes to reach Jacobabad. This difficulty is said to be accentuated in the summer months. The petitioners state that the complaint is wholly a false one and had apparently been filed at the instance of their enemies with a view to harass them. In any case, it is contended, the facts as set out in the complaint do not reveal any offence and at best could be viewed as furnishing a cause for a civil action.
4. This petition was admitted to regular hearing on 24-9-1969 where after several fruitless attempts have been made to serve Abdul Haque the second respondent at the address given by him in the complaint. On 24-11-1969 it was directed that the respondent No. 2 should be served through the S. D. M., Jacobabad. Even this attempt proved unsuccessful and the S. D. M. reported that the respondent was said to have left the address long ago. On 12-1-1970 it was ordered that the respondent should be served through the S. P., Jacobabad. The report of the Superintendent Police states that enquiries made by him reveal that no person of the name of respondent No. 2 had ever resided at the address given in the complaint for the past 10 or 11 years. The notice was therefore returned unserved. Mr. Nooruddin Sarki, Advocate, appearing for the State observed that the complainant (respondent No. 2) appeared to be a fictitious person with no abode at Jacobabad. This undoubtedly seems to be the only inference that could be drawn from the reports, both of the S. D. M. and the S. P., Jacobabad.
5. Be that as it may a mere perusal of the complaint in question leaves no manner of doubt that the facts alleged therein, even if true, would constitute at best a simple case of breach of contract or a case for refund of money had and received by the petitioner. It is amazing how the learned S. D. M. a responsible Judicial Officer of a District Headquarter, could on those facts issue bailable warrants of arrest against persons shown to be resident in and carrying on business at Karachi. Mr. Zafar Khan, the learned counsel for the petitioners argued that even the facts as alleged in the complaint did not need any close scrutiny to demonstrate that they were palpably false. Although I am inclined to agree with the view canvassed by the learned counsel, yet for the purpose of the complaint before him I do not think the learned Magistrate was under any legal obligation at that particular stage to address himself to the probabilities and to the latent aspects of the case.
Nonetheless it cannot be disputed that on a plain reading of the facts as stated in the complaint there was little justification for the learned S. D. M. to have taken cognisance of the offence as alleged and to have issued the process to the accused named therein. Perhaps the learned S. D. M. was pursuaded to act on the principle that there was prima facie evidence of a representation made by the accused persons acting where on the complainant he entrusted or made over to them a certain sum of money; that upon the accused refusing to refund the money or to supply the fish as agreed, the representation originally made took a fraudulent colour and the complainant was wrongfully deprived of his money; that in any case the money had been paid to the accused as price of goods to be supplied and the accused by refusing to supply the goods, or to refund the money, could be construed as having either misappropriated the money or committed a criminal breach of trust in respect thereto, while meeting this approach I cannot but observe that ingredients of offences under sections 420, 403 and 406 are to a substantial extent available in most cases of breach of contract. Similarly a default by a borrower in repayment of a debt without admission of liability may also frequently partake of the character of an offence under section 406, P. P. C. There are numerous other instances of defaults in transactions purely civil in nature but which often appear to answer fully the ingredients of a criminal offence; and with a little clever glossing over every such case could be converted into an earnest prosecution. It is here that a Court is called upon to act with circumspection and to exercise the utmost care and caution before it is pursuaded to employ its process for compelling attendance. This duty is heavier in private complaints which relate to transactions apparently civil in nature. The tendency to view a criminal action as a handy means to constrain a person's conduct cannot be under-scored. We are still left with people in this country who are prepared to pay a price for their fair name and the spectre of a criminal prosecution can often compel them easily to relent on a stand which is otherwise well founded in law and in equity. It is this growing abuse of the process of a criminal Court that has to be guarded against. The difficulty for the Court itself often arises on account of the overlapping nature of a civil and criminal cause. But yet with a prudent application of mind it should be possible to draw a distinction between the two. It is perhaps well to remember that the word "crime" suggests that not only should a man have brought about the forbidden actus but also that the line of conduct which he had voluntarily continued to that conclusion was inspired, or at least accompanied, by mens rea. The accused, in other words, shall have been actuated by a legally reprehensible attitude of mind.
6. In the instant case, if the accused had falsely represented themselves to be fisherman, while in truth they were not so, perhaps the foundation of a criminal liability may have been laid. But the complaint describes each one of the accused persons as a fisherman in the array of accused given in the complaint. It is not the complainant's case that the enquiries made by him at Karachi revealed that the accused were in fact not fishermen or had nothing to do with fish business. There, does not seem to be even a germ of criminal liability present in the facts as set out in the complaint. Even if it is to be assumed that the said facts were true and, further, that the accused have not acted fairly in refusing to refund the complainant's money and in not supplying the contracted fish, yet there is not even a suggestion that the accused had acted with a fraudulent intention to deceive the complainants.
7. A Court will not in the exercise of its inherent powers under section 561-A, Cr. P. C. readily interfere with a criminal proceeding with a view to quashing it unless it is fairly apparent that the proceeding is an abuse of the process of the Court and is a perversion of the purpose of the law such as to cause harassm ent to an innocent party. This principle has been clearly laid by the Supreme Court of Pakistan in the case of M. S. Khawaja v. The State (1). Later, in Ghulain Mohammad v. Muzammal Khan (2) while frowing on an excessive exercise by the High Court of its jurisdiction under section 561-A, Cr. P. C. for the quashing of criminal proceedings, the foregoing principle of approach was reiterated by the Supreme Court and the decision of the High Court in R.
C. P. Guignard v. The State and another (3) was approved to the extent that it clearly recognised that the High Court will interfere in the exercise of its inherent jurisdiction if it was satisfied that the resort to criminal proceedings "is doing something which is not warranted by law". [11]
8. The case before me appears to be one of those string of cases which are lodged primarily with a view to harass the persons named as accused therein. A common feature of these cases is to institute them in far off places so that the very attendance in these Courts from date to date becomes highly inconvenient and expensive to the accused. It is true that this aspect by itself will not render a criminal proceeding incompetent. But the nature of the complaint in the instant case, the facts recited therein, the mystery which surrounds the existence and whereabouts of the complainant himself and other factors leave no manner of doubt that the whole proceeding is a fictitious one brought with a design to harass the present applicants and not to secure the ends of justice. These proceedings were stayed by Mohammad Hayat Junejo, J. as early back as September 1959 and the stay order communicated to the learned S. D. M. It is normal to presume that the complainant must have come to know of the stay of his case and must have found out the circumstances and the proceedings in which the order was passed. Yet until today he has not come forward to defend the complaint lodged by him. And every effort of this Court to serve him and to ascertain his whereabouts has proved fruitless.
9. In the result, this application under section 561-A, Cr. P. C. is allowed and the proceedings pending before the learned S. D. M., Jacobabad in connection with the said complaint are quashed. .