1. ' This is an application under section 561-A, Cr.P.C. For quashment of proceedings pending against the applicants under section 430, P.P.C. Before the learned Additional City Magistrate Gulshan-e- Iqbal, Karachi.
2. ' The brief facts giving rise to the present application are that the complainant respondent No,1 is tenant of applicant No,2 Mrs. Farida Masroor in respect of premises bearing No,FL-11/8 Block 13-A Gulshan-e-Iqbal, Karachi on monthly rent of Rs,1,800 vide agreement dated 9-4-1986. Applicant No,2 Mrs. Farida Masroor is wife of Applicant No,1 K.M. Hussain and mother of Applicant No,3 Raffat Hussain. That on 27-11-1988, complainant respondent No,1 filed a direct complaint inter alia alleging therein that the accused applicants tried their best to dispossess the complainant respondent No,1 but could not succeed and therefore, they sent a notice dated 1-3-1988 to the complainant to vacate the premises as the same were required by the landlady for her personal use, but on demand of refund of security deposit of Rs,20,000 she refused to refund the same. That apprehending forcible dispossession, the complainant responent No,1 filed Suit No,820 of 1988 in the Court of Xth Civil Judge (East) Karachi on 31-5-1988 in which status quo was ordered to be maintained. Mrs. Farida Masroor filed ejectment proceedings in the Court of IInd Senior Civil Judge and Rent Controller which is sub judice before the Court. In view of the above circumstances the complainant withdrew his suit. However, he had to file another Suit No,1451/88 before the same Court against Mrs. Farida Masroor and her husband for permanent injunction and they were ordered to maintain status quo. That according to the complainant the accused have been frequently closing the flow of water and not a single drop of water is allowed to flow fOr the consumption of the complainant with the result that the complainant and his servant have to bring water from outside through a public tap and sometimes from the neighbours. That in violation or disregard of the order of competent Courts the accused with mala fide intention, ulterior motives, put control valves upon the water line and control switch on Sui-gas pipe with the result that they frequently disconnect and disturb the flow of water and Sui-gas in order to harass and force the complainant to vacate the demised premises. These controlling valves are put under the supervision of the accused and as such the act of disconnection of amenities comes within the mischief punishable under section 430, P.P.C. In the complaint two witnesses namely Amjad vegetable-seller and Sakhawat Hussain servant of the complainant were cited as witnesses.
3. ' On receipt of the above complaint the learned Magistrate was pleased to direct that statement of complainant be recorded and later on process under section 430 P.P.C. Was issued against the accused applicants. The present application has been filed for the quashment of the above proceedings.
4. ' It has been contended by Mr. Kazi Khalid learned counsel appearing for the complainant that the proceedings initiated against the applicants were mala fide and false. That no criminal case was made out from the complaint and the complainant respondent No,1 could file an application under section 11 of Sindh . Rented Premises Ordinance before the Rent Controller, and the learned Magistrate had erred in issuing process against the applicants.
5. ' Mr. Chaudhry M. Iqbal, learned counsel appearing for the complainant has contended that the complaint disclosed an offence under section 430, P.P.C. And the process was rightly issued. He has further contended that the applicants have failed to move the trial Court under section 249-A, Cr.P.C. And, therefore, the present applicantion was not maintainable in law.
6. ' Mr. Ali Nawaz Dehraj, learned counsel appearing for the State has contended that from the facts and circumstances of the case, it is clear that there was a dispute between landlady and tenant and the criminal proceedings were misconceived and not maintainable in law.
7. I have considered the contentions of the learned counsel. The complaint itself disclosed that the complainant respondent No,1 was tenant of applicant No,2. That it is also an admitted position that there has been litigation between the parties and the complainant respondent No,1 has filed civil suits against the applicants, while the applicant No,2 has filed ejectment proceedings against the B complainant. In view of the fact that there is relationship of landlady and tenant between the parties the complainant respondent No,1 could file an application under section 11 of Sindh Rented Premises Ordinance if the sui-gas and water supply to his residence wa disturbed and discontinued. Section 11 reads as under: ' Section 11. Discontinuance of amenities and services.
(1) No landlord shall discontinue or cause to be discontinued any service such as electricity, gas or water, except with the previous consent of the tenant or in compliance with the requisition of the concerned authority or after obtaining the direction of the Controller in this behalf.
(2) Where the landlord has discontinued or caused to be discontinued any service in contravention of subsection (1), the tenant may make an application to the Controller for restoration thereof.
(3) Where the Controller is, after making such inquiry as he deems fit, satisfied that the service has been discontinued without sufficient cause he shall make an order directing the landlord to have the service restored within such period as may he specified in the order.
(4) Where the landlord has failed to comply with the order of the Controller made under subsection (3), the Controller may take necessary steps to get the service restored and recover the cost of such restoration from the landlord.
(5) Where the landlord has contravened the provisions of subsection (1), he shall be punished with simple imprisonment for a period not exceeding six months or with fine or with both.
8. There is no doubt that the applicants have not applied to the trial Court under section 249-A, Cr.P.C. For their acquittal. However, since the abashment application has been admitted to regular hearing, it cannot be said that this Court cannot decide the same on merits. In this connection reference may be made to the case of Munir Ahmad v. State 1985 SCMR 257, wherein it was observed by their Lordships of the Supreme Court in abashment proceedings filed by the accused that: "The powers of the trial Court under section 249-A, Cr.P.C. And section 265-K, Cr.P.C. Are co- extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to. It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining in appropriate cases, an application under section 561-A, Cr.P.C. Directly."
9. From the above factual as well as legal position I am of the considered view that from the complaint filed by respondent No,1 against the applicants no criminal case was made out and the proceedings were initiated against the applicants only with a view to harass them, and as such, the same are an abuse of the process of the Court. I, therefore, allow this application and quash the proceedings pending against the applicants under section 430, P.P.C. Before the trial Court.