' This petition under Article 199 of the Constitution, by Ali Muhammad and four others, seeking the proceedings in pursuance of F.I.R. No, 709 dated 25-5-1989 "to be cancelled and set aside" has arisen in the following circumstances.
2. Ali Muhammad petitioner, brought a suit for the possession of the property in dipute against Muhammad Shafi, father of Muhammad Anwar, respondent. The suit was contested and after a protracted litigation. It was decreed in favour of Ali Muhammad on 16-3-1988. Muhammad Shaft appealed against the judgment and decree of the learned trial Court but his appeal was dismissed on 2-3-1989. On 24-5-1989, the respondent, Muhammad Anwar was on his way to the police station when he met the A.S.I. Abdul Latif Baig at a chowk and reported to him that on 14-3-1989, he and his employee Fateh Masih were present at the premises in dispute when the petitioners, variously armed, attacked forced their way into the premises in dispute and forcibly dispossessed them. It was said that they had also removed the machines etc. Installed in the premises.
3. The case was investigated by a D.S.P. And he reached the conclusion that the case was false and the petitioners were innocent of the alleged offences. Yet as the complainant insisted that the matter should go to the Court, the petitioners were challaned. The report under section 173, Cr.P.C. Is dated 28-6-1989. It is stated that the learned trial Magistrate has summoned the petitioners to stand their trial.
4. At this point, it may be mentioned, the petitioners were admitted to bail before arrest by my order dated 26-6-1989.
5. The petitioners' case is that the case is false; that in fact the petitioner Ali Muhammad had, after the dismissal of the appeal of Muhammad Shafi, filed an execution application in the Court of the learned Civil Judge and that in pursuance of the learned Civil Judge's order the Bailiff had duly executed the decree and placed Ali Muhammad in possession of the premises in dispute. A copy of the Bailiff's report dated 14-3-1989 saying that Muhammad Anwar, complainant, was present at the spot and that in execution of the decree possession of the premises in dispute had been delivered to the decree-holder, has been placed on the record. It also appears that the Bailiff had supported his report dated 14-3-1989 before the Investigating Officer.
6. Learned counsel for the petitioners, therefore, maintained that in launching the prosecution against the petitioners, the complainant Muhammad Anwar was obviously actuated by malice, that the real object of the complainant was to deprive the petitioner Ali Muhammad of the fruit of the decree and to subject the petitioners to unnecessary and illegal harassment. Learned counsel for the complainant on the other hand argued that the question whether such an incident had occurred required an inquiry and, therefore, the petitioners are not entitled to the relief claimed.
According to him, the proper course for the petitioners was to move the learned trial Magistrate under section 249-A, Cr.P.C. As they have not availed the ordinary remedy under the Cr.P.C., so runs the argument, the petitioners are not entitled to the discretionary relief under Article 199 of the Constitution.
7. Thus, the petitioners had obtained a decree for the possession of the premises in dispute after a protracted litigation. As the record stands, there is no reason to doubt the verity of the fact that the petitioner Ali Muhammad had made execution application on 13-3-1989 and that the Bailiff had delivered to Ali Muhammad petitioner the possession of the premises in the presence of Muhammad Anwar, complainant on 14-3-1989. The first information of the alleged offences was not made till as late as 24-5-1989. It is also significant to note that on 26-4-1989, the judgment- debtor Muhammad Shafi had made an application for the review of 'the learned executing Court's order dated 14-3-1989. In that application, he had said that he had filed a revision petition in the High Court and that the High Court had granted a stay on 28-3-1989, and that on 14-3-1989, the decree-holder had taken possession of the premises in dispute by suppression of material facts. At the time of delivery of possession the judgment-debtor was not present. The Bailiff had not gone to the spot and the decree-holder had himself removed the machines etc. Installed in the premises in dispute. There was no mention in that application of the names of the petitioners other than Ali Muhammad or that they had acted in the manner alleged in the F.I.R. All these facts, in any view, combine to lead to the conclusion that the F.I.R. Was made mala fide and that in launching the prosecution against the petitioners, the respondent Muhammad Anwar was actuated by malice.
He was moved by the ulterior purpose of avenging the defeat in the civil litigation; the Investigating Officer arrived at the conclusion that the allegations were false, yet, instead of recommending that the case be cancelled, be found it convenient to send the case to the Court and the learned Magistrate, seemingly, without applying his judicial mind to the facts as contained in the report under section 173, summoned the petitioners to stand their trial. The unfortunate result is that Ali Muhammad, his two brothers, alongwith the other close relatives have been left to undergo the agonizing experience of a criminal prosecution on such serious charges as acts contrary to sections 452, 380 and 440 of the P.P.C. And the provisions of the Offences Against Property (Enforcement of Hadd) Ordinance, 1979.
8. In the circumstances of the case, I do not think that the failure of the petitioners to avail of the ordinary remedies under the Code of Criminal Procedure, can stand in the way of doing complete justice. A mala fide action is by its very nature an action without jurisdiction (Abdul Rauf v. Abdul Hamid PLD 1965 SC 671). Otherwise too, as the Magistrate had summoned the petitioners, it would have been futile for them to approach him under section 249-A of the Cr.P.C.
9. In the result, I am perfectly clear in my mind that the petitioners' prosecution is mala fide and that it will be abuse of the process of the Court to allow the proceedings to continue. I would, therefore, in exercise of this Court's power under Article 199 of the Constitution and in exercise of this Court's inherent power under section 561-A, Cr.P.C. To prevent abuse of the process of the Court, quash the proceedings against the petitioners.