Sheikh Muhammad Sadiq moved this petition on 8.6-73 under section 561-A of the Cr. P. C. Seeking quashment of two proceedings under Pakistan Penal Code brought against him by Muhammad Zarin, respondent No. 1, and Said Khan, respondent No. 2.
2. It may be mentioned that respondent No. 2 made a complaint against him under section 406/420, P. P. C. In the Court of Mr. Lal Badshah, Magistrate 1st Class, Peshawar presumably in May 1973. . In this complaint, respondent No. 2 was examined under section 200 of the Cr. P. C. On 19-5- 73, and the petitioner was summoned for 6-6-73. It will be seen by the time the petition came before me on 13-6-73 the petitioner was successful in getting an order from the Magistrate directing Police enquiry and report before further proceedings. The petitioner in the circumstances stated that he will not press his application. To this stand he firmly holds and the learned counsel for the petitioner while arguing the case stated at the bar that the proceedings appear to have been filed and therefore, the matter in so far as that case is concerned, should be allowed to stand at rest.
3. The learned counsel for the petitioner, however, insists that proceed--ings in section 406, P. P. C.
Case brought about by respondent No. 1 on 22-5-73 at Mardan in the Court of Mr. Mahmood Khan, Magistrate Ist Class, require to be quashed for the story of the complainant was highly improbable and the learned Magistrate issued the summons without a proper examination of the complainant under section 200, Cr. P. C. As a matter of fact the learned Magistrate did not apply his mind at all in a case in which the petitioner was to be summoned from Multan. The examination under section 200, Cr. P. C. Is nothing but a verification note usually appended to petitions and the learned Magistrate also omitted to enquire from respondent No. 1 as to who were his witnesses. The learned counsel for the petitioner adds that his misfortune and suffering is due to the machinations of one Haji Muhammad Sharif of Multan against whom he has brought a pre-emption suit. The latter has in order to coerce and harass him inspired not only the two complainants alluded to above but also a complaint at Kot Adu, District Muzaffar Garh.
4. Respondent No. 1 though served through newspaper has cared not to appear and therefore there is no denial of the allegations muchless a counter-affidavit that the petitioner has made. It is noteworthy that the suit against Haji Muhammad Sharif was instituted on 14-7-72 and the same was pending on 8-5-73, the complaint under section 406/413 against the petitioner was lodged at Kot Adu on 4-4-73 the complaint under section 406 against the petitioner at Mardan was lodged on 23-5-73 and the complaint under section 406/420 at Peshawar against the petitioner was lodged on May 1973, presumably on 19th.
5. Coming to the story in the Mardan complaint I have no hesitation in holding that it is highly improbable. The respondent asserted that the petitioner went to Mardan to sell a buffalo and stayed with him and that he entrusted Rs. 2,000 to him. Why should such an amount be kept in trust with a person who lives in Multan. Could not respondent No. 1 find someone at Mardan if- he did not at all know that deposit could be made in a Bank. Furthermore it is unbelievable that a trader from Multan will be bringing a buffalo for sale at Mardan. The latter place is supplied by locals who when they make purchases from Punjab go to Gopdal in Campbellpur. I also agree with the learned counsel for the petitioner that the examination of respondent No. 1, if at all, is perfunctory. The Magistrate was duty bound to ascertain facts and to record the substance of the examination. This examination should have been with respect to the accusation and the substance should have brought about his impression about the matter. Had the Magistrate been careful, he could not but come to the conclusion that the story was highly improbable. The accused was to be summoned from Multan 400 miles away from Mardan and the complainant had not cited any witness or could not produce any one to support the complaint.
6. The learned Assistant Advocate-General contended that if the petition is accepted at so early a stage, it will stifle prosecution and that this was disapproved by their Lordships of the Supreme Court in Raja Naq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354)., I am in respectful agreement with the observations of their Lordships but cannot overlook that in that very case on a consideration of the facts after a full hearing a larger Bench of the Supreme Court in Raja Haq Nawaz v. Muhammad Afzal and others (1968 P Cr. L J 1867) upheld the impugned orders observing :- "Normally of course, every case should be allowed to proceed according to law, and resort to the provisions of section 561-A of the Code of Criminal Procedure should not be lightly made, as this would circum-- vent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muzammal Khan on which Mr. Saeed Hassan Malik relies. The reported case is, however, distinguishable on the facts from the instant case. Each case must be judged on its own special facts and circumstances. The learned counsel for the appellant conceded that there was power vested in the High Court to quash criminal proceedings, if it was satisfied that a false complaint had been brought and the process of Court was, therefore, being abused, not to advance the interests of justice but to subject the accused person to unnecessary harassment. We are convinced that the present cases are of that nature and, consequently, the order passed by the learned Chief Justice requires no interference by this Court. Both the appeals are hereby dismissed.
7. In the circumstances of the present case it will be sheer abuse o the processes of a subordinate Court if the proceedings in the complaints are not quashed. I am clear in my mind that the proceedings are with a view to harass the petitioner. Order accordingly.