This is a reference under section 438, Cr. P. C. by the learned Sessions Judge, Jacobabad recommending that criminal proceedings under section 420, P. P. C. pending against the respondent No. 1 Mahmood Khan in the Court of Extra Asstt. Commissioner, F. C. M., Nasirabad be quashed.
2. The facts giving rise to this reference are that on 22-7-1969 a complaint was filed by Pir Muhammad, respondent N.0. 2 against Mahmood Khan respondent No. 1 alleging therein that the respondent No. 1 had cheated him by giving him certain land on contract as he had no intention whatsover of having the said contract registered. He accordingly, evaded doing the Same for 3-4 months whereafter he flatly refused. It was alleged in the complaint that the respondent No; 1 had taken a huge amount by defrauding the complainant and had in addition made the latter spent an additional amount on the land.. The learned Magistrate held a, preliminary enquiry in the course of which he examined two witnesses and thereafter issued process; against the respondent No. 1 for an offence under section 420, P. P. C. The case has riot yet proceeded thereafter as the respon - dent No. 1 filed an application before the learned Sessions Judge, Jacobabad for making a reference to this Court lor quashing the said proceedings. This prayer of respondent No. 1 was accepted by the learned Sessions Judge who recommends that the proceedings should be quashed as the matter is essentially one of civil nature relating to a breach of contract.
3. As I have already stated above no evidence has been led in the case so far and it is, therefore, not possible to say as to what would be the nature thereof.
4. It is not proper for this Court to intercept and quash the proceedings at this stage when there is only a complaint before it in which also piima fade offence is disclosed. In such cases it is only after evidence is recorded that the truth or falsity of the said complaint can be tested. If this Court were to interfere at this stage of the proceedings it will be converting itself into a < Court of the first instance in almost all criminal cases and deciding disputes even before evidence has been led.
Besides it would not be fair to the complainant that his complaint should be thrown out before he had his chance to examine his witnesses. It will amount to stifling the prosecution and such a practice has been disapproved by their Lordships of the Supreme Court in the cases reported as G hid am Mohammad v. Muzammal Khan and others (1) and Haq Nawaz v. Mohammad Afzal (2).
5. For the reasons given above 1 would reject this reference. Let the file of this case be returned to the trial Magistrate who will proceed with the case as expeditiously as possible.
Reference rejected.
(1) PLD 1967 SC 317 (2) PLD 1967 SC 354