1. This Criminal Miscellaneous Application has been filed for quashment of the proceedings initiated against the applicant in the Court of 1st Class Magistrate Naushero Feroze, on the basis of F.I.R.
2. No.53/91 lodged by respondent No.1 at Police Station Naushero Feroze, which is reproduced below verbatim for appreciation of the case:-- "That on 6-11-1990 one Muhammad Hassan son of Allah Bux, caste Pathan, village Koat Laloo who also has power of attorney of Abdul Rashid, caste Jat, had entered into a transaction with me for space for Rs.2,65,000 which is situated at Kamura Colony, Nawabshah. In this regard he had obtained from me a cheque for Rs.1,30,000 and also cash Rs.5,000 and had given possession thereof on the site. Thereafter, I had deposited an amount of Rs.80,000 in House Building Finance Corporation. The balance of the amount was to be paid within three months as given in writing.
3. After the lapse of time, I reminded him time and again, but he started giving me various threats and also said that you may do whatever you like but he will not give me in writing.
4. It is, therefore, humbly requested to you to please help me and I will be highly obliged. The accused Muhammad Hassan Pathan has taken from me Rs.2,15,000 for land by fraud and cheating. This amount was given in presence of Zahoor Ahmed Arain and Abdul Aziz Qureshi. He had compelled me for preparing documents of land but thereafter he threatened me. Please take legal action so that I may save my skin:'
5. The case of the applicant is that on 8-1-1991, he had filed Suit No.9/91 in the Court of 1st Senior Civil Judge, Nawabshah, against respondent No.1 and others for specific performance of the contract, in alternate for recovery of Rs.2,50,000 and other necessary and ancillary reliefs.
6. The facts of the suit are that the applicant had entered into agreement dated 11-10-1989 for purchase of property situated in Nawabshah with one Abdul Rashid for total consideration of Rs.3,30,000. The applicant paid a sum of Rs.2,50,000 to the seller, the balance of Rs.80,000 being payable to the House Building Finance Corporation on account of loan borrowed by the seller.
7. Since the owner had received the entire sale consideration in so far as it was payable to him, he executed a general power of attorney which was registered on 29-10-1989 in favour of applicant to enable him to execute the sale-deed. The property was in possession of defendant No.2, Mushtaq Ahmad who was supposed to hand over the possession to the applicant but it was not done. On the contrary, the owner Abdul Rasheed started negotiation of sale of the property with Mushtaq Ahmed. According to the plaint, the owner, Abdul Rasheed, gave an alternate offer to the applicant for sale of the property to Manzoor, the respondent No-1, herein for total consideration of Rs.2,65,000 payable to him plus the loan amount payable to the House Building Finance Corporation. Since the applicant did not expect to get possession from Mushtaq Ahmed, he agreed to earn profit of Rs.15,000 in the manner suggested by the owner, Abdul Rasheed, and accordingly the applicant acting on the basis of power of attorney executed an agreement on 6-11-1990 in favour of respondent No.1, Manzoor Ahmed for the aforesaid consideration. Out of Rs.2,65,000 a sum of Rs.5,000 was paid to the applicant in cash. It was further stated in the agreement that a cheque in the sum of Rs.1,30,000 was handed over to the applicant, but according to the applicant, no such cheque was in fact delivered to him. The agreement further provided that the balance amount of Rs.50,000 was payable to the applicant at the time of registration of sale-deed in presence of the Registrar of the Properties. On 10-11-1990, the said Abdul Rasheed cancelled the power of attorney executed in favour of the applicant by a registered deed of revocation. The suit was filed by the applicant, under the above circumstances.
8. I have heard Mrs. Navin Merchant, learned Advocate for the applicant, Mr. Latif-ur-Rehman's Khan Survery, learned Advocate for respondent No.1 and Mr. Zaheer Ahmed Qureshi for the State.
9. The learned Advocate for the applicant has contended that the F.I.R. Does not disclose any offence under section 420 or 506, P.P.C. The F.I.R. Has been lodged with a view to coerce the applicant to withdraw the suit and surrender his rights that have accrued to him under the agreement.
10. Respondent No.1 is an influential person and the applicant is being harassed by police at the instance of the said respondent. It is further stated that the owner has already executed sale-deed in favour of respondent No.1. The dispute between the parties is purely of civil nature. The continuance of the criminal proceedings is nothing but abuse of the process of the Court.
11. She has relied on the following authorities:
(i) Shaukat Ali v. The State PLD 1987 Lah.116 on the proposition that the refusal to honour an agreement to sell or to pay back the advance money do no prove mens rea and that the dispute between the parties being purely of civil nature, a party cannot be permitted to use criminal proceedings as coercive measure and to make the other party to suffer indignity of being an accused person in a criminal case.
12. The learned Judge in the above report has placed reliance on the case of Akbar Ali v. Julian H.
13. Dinshaw and others 1971 SCMR 613 and Superintendent of Police F.IA. v. Akhtar Hussain Bhutta PLD 1978 SC 193 for the view that the dispute being of civil nature cannot be allowed to drag on in Criminal Courts. In the aforesaid report the allegations were that the accused after executing agreement to sell did not actually sell land, nor returned advance money received by him at the time of execution of the agreement.
(ii) Ghulam Ali v. Javid and another 1989 P Cr. L J 507. wherein the learned Judge of this Court quashed the criminal proceedings for the reason that the complaint disclosed business dealing between the complainant and the accused and as such the transaction was found of civil nature and the complaint was filed to harass accused, which was not likely to end in conviction of the accused. The reliance was placed on the case of Abdul Rasheed and 2 others v. The State and another 1987 P Cr. L J 1380. And Muhammad Ali and another v Assistant Commissioner, Narowal and another 1987 SCMR 795.
14. The learned counsel for respondent No.1 has contended that the pendency of the Civil Suit by itself does not bar the proceedings under the Criminal Procedure Code and according to him since the F.I.R. Discloses commission of offence under sections 420 and 506, P.P.C. The proceedings cannot be quashed. He has also raised the plea that the alternate remedy under section 249-A, Cr.P.C.
15. Being available, the applicant cannot invoke the jurisdiction of this Court, under section 561-A, Cr.P.C. Without first exhausting the said remedy. He has further submitted that applicant under any circumstances, should have allowed some evidence to be brought on record before the Magistrate and if there was no case made out after recording of the evidence, the applicant could come before this Court for quashment of the proceedings. In short, his submission is that the present application is premature.
16. The learned counsel for the respondent No.1, has referred to the following cases:--
(i) Nur Muhammad Khan v. Sh. Sabz Ali and another PLD 1965 Lah. 345 in which following observations were made: "A particular act may give rise to proceedings both under the civil and criminal law. Whereas the civil suit is to determine the rights of the parties and may entitle the plaintiff to a decree, in criminal matters, particularly in cognizable causes, the accused is liable to the State and the society for the offence, which he has committed. Thus, an accused person cannot be discharged under section 253(1), Criminal Procedure Code, merely because a civil suit in respect of the same matter is pending between the parties
(ii) Dodo Khan v. Jalaluddin and another PLD 1973 Kar. 554. complaint disclosed prima facie case. The facts were that the accused had entered into an agreement of sale of agricultural land with the complainant and also received one-fourth of the sale consideration by giving out himself to be the exclusive owner of the property but subsequently it transpired that he was not the exclusive owner but was only a co-sharer alongwith others. Thus, this was a case of clear misrepresentation whereas in this case, there is no such allegation of misrepresentation regarding the ownership of the property or the authority conferred on the applicant to sell the property (i.e) Margoob Alam and another v. Shamsuddin and another 1986 SCMR 303 wherein it was held that powers under section 561-A, Cr.P.C. Are meant to prevent abuse of the process of the Court and not to stifle the prosecution. The facts of the case are not mentioned in the report but however, the learned Judges maintained the order of the High Court refusing to quash the proceedings as the High Court was of the view that the facts alleged in the complaint prima facie disclosed commission of criminal offence. It was in the above background that the contention of the petitioner that the respondent having also initiated proceedings by way of a civil suit, the criminal proceedings initiated by him amounted to abuse of the process of the Court, was repelled.
(iv) Ikramullah v. Muhammad Yousuf 1984 P Cr. L J 350 wherein the Lahore High Court refused to quash the proceedings for the reason that the story of the complainant was not implausible and unless some evidence was recorded, the complaint could not be said to be baseless.
(v) Manzoor and another v. The State 1982 P Cr. L J 261.
17. The learned Judge was of the view that the F.I.R. Disclosed prima facie case under sections 403 and 342 read with section 34, P.P.C. Against the applicants who had come for quashment of the proceedings, and therefore, expressed the view that without recording some evidence the contention raised by the applicants that the dispute was of civil nature cannot be considered for the quashment of the proceedings although the suit was pending in respect of the same dispute.
(vi) Ishtiaq Hussain v. Abdul Qadeer 1982 P Cr. L J 463.
(vii) Nazimuddin v. The State 1982 P Cr. L J 105.
(viii) Ali Asghar v. The State 1982 P Cr. L J 24.
18. The application filed under section 561-A, Cr.P.C. Was dismissed by a learned Single Judge of the Lahore High Court and the applicant was directed to appear before the trial Court and explain his position both on factual and legal plane. Neither the facts of the case nor any law has been referred to in this report.
(ix) Khushi Muhammad and 4 others v. The State 1979 SCMR 94
(x) Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 wherein their Lordships observed that:-- "The argument that the inherent jurisdiction under section 561-A of the Code of Criminal Procedure is not necessarily excluded, because a revision is also possible, cannot be accepted as a general principle. These power are as much controlled by principles and precedents as are its express statutory powers:"
19. It was further observed:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence:"
(xiv) Fazal Karim v. The State PLD 1976 SC 461.
20. "It is well-settled that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course of criminal procedure."
21. The learned Advocate for the applicant in reply to the submissions of the learned counsel for respondent No.1, has placed reliance on the following cases on the proposition that the powers of the trial Court under section 249-A, Cr.P.C. And the High Court under section 561-A, Cr.P.C. Are co- extensive.
(i) Mian Munir Ahmed v. The State 1985 SCMR 257 wherein their Lordships have observed as under:-- "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 an appropriate case, an application under section 561-A, Cr.P.C. Directly."
(ii) Ghulam Ali v. Javaid and another 1989 P Cr. L J 507 wherein a learned Judge of this Court relying on the case of Mian Munir Ahmed (Supra) followed the view that there was no bar in moving the High Court under section 561-A, Cr.P.C. Without approaching-the trial Court under section 249-A, Cr.P.C. As the powers of the trial Court under section 249-A, Cr.P.C. And the powers of this Court under section 561-A, Cr.P.C. Are co-extensive. In this case, it was found by the learned Judge that the dispute between the parties was of civil nature and the criminal case under sections 406/420 and 506, P.P.C. Was filed to harass the applicant and the proceedings were quashed.
22. (i.e)Muhammad Urs v. The State 1990 MLD 1583 wherein similar view was expressed with regard to the powers of the trial Court and the High Court being co-extensive under the aforesaid two sections.
23. The learned Judge for the above view placed reliance, in addition to the case of Mian Muneer Ahmed (Supra), on the cases of Tufail and others v. The State and another 1986 P Cr. L J 2749, M.S. Khawaja v. The State PLD 1965 SC 287 and Chaudhry Muhammad Ashraf v. The State 1990 P Cr. L J 347.
24. Following principles can be concluded from the case-law cited by the learned Advocates for the parties with regard to the exercise of the powers by the trial Court under sections 249-A and 265-K and the High Court under section 561-A:-- (i)Mere pendency of a civil suit, does not absolve a party from a criminal charge if the facts of the case established the same but if the facts of the case do not disclose mens rea or commission of criminal offence, the criminal proceedings will be an abuse of the process of the Court and cannot be allowed to be used as an instrument of harassment or coercion for attainment of unlawful purpose.
25. (ii)The power to quash the criminal proceedings cannot be exercised where the case set up by the complainant prima facie shows a plausible case, unless some evidence is recorded to establish that the dispute is of a civil nature or where the appraisement of the evidence by the trial Court is desirable in the first instance looking at the facts and circumstances of the cane.
26. (i.e)The exercise of jurisdiction by the High Court under section 561-A is controlled by the principles and precedents as much as by express statutory powers.
27. (iv)The powers under section 561-A cannot be exercised to stifle the proceedings where prima facie case is disclosed but there is no bar in exercise of such powers when the charge on its face does not disclose any offence.
28. (v)The powers of the High Court under section 561-A, Cr.P.C., and those of the trial Court under sections 249-A and 265-K, Cr.P.C. Are co-extensive.
29. The scrutiny of the F.I.R. In this case discloses that on part payment of the sale consideration, the applicant delivered the possession of the property in question to respondent No.1. According to the applicant, the owner of the property revoked the power of attorney on 10-11-1990. The fact of revocation has not been controverted by the learned counsel of respondent No.1. The allegations made in the F.I.R. Do not disclose that the applicant had induced respondent No.1 to make the part payment of the sale consideration, with no intention from the very outset to deliver the property or execute the sale-deed.
30. Such are the basic ingredients of offence of cheating under section 420, P.P.C. The facts of this case on the contrary, demonstrate that it is the applicant who has suffered the losses because of the conduct on the part of the owner of the property on the one and respondent No.1 on the other hand. The applicant had paid the entire sale consideration to the owner in so far as, it was payable to him and the owner executed registered general power of attorney in his favour to enable him to execute the sale-deed and to obtain redemption of the mortgage after payment of the loan to the Corporation or to deal with the property as he may choose.
31. So far as respondent No.1 is concerned, his grievance is that the applicant, has not executed sale- deed in his favour in spite of his demands. The applicant was striped of such authority with effect from 10-11-1990. After all, he was an agent, therefore, respondent No.1, ought to have made such a demand from the owner, the principal, on revocation of the power of attorney.
32. Respondent No.1 has not pleaded ignorance about the above facts. Under these circumstances, no fraudulent intentions can be attributed to the applicant. The remedy was/is available to respondent No.1 by way of suit for specific performance of the contract against the owner. The dispute amongst the parties i.e. The applicant, respondent 1Vo.1, and the owner is purely of civil nature. The rights of respondent No. 1 are already secured to a great extent by virtue of physical possession of the property in dispute being with him.
33. This brings us to section 506, P.P.C. In the F.I.R. The allegation is that the applicant had threatened respondent No.1 on his demand for execution of the sale-deed. The above allegation is not conceivable under the circumstances of the case. Applicant has no reason to extend threats. All that can be conceived of is expression of his inability td do so, because of the revocation of the power of attorney by the owner. Even otherwise the F.I.R. Is vague in this context, as the nature of the alleged threat and the date, time and place when and where it was given have not been disclosed in the F.I.R. To lead one to infer commission of offence of criminal intimidation for compelling respondent No.1 to do, what he is not legally bound to do or omit to do what he is legally entitled to do.
34. The F.I.R. Was lodged after about three months of the institution of the suit. It, therefore, stands to reason that the F.I.R. Was lodged by respondent No.1 to coerce the applicant to withdraw the above suit. The said proceedings are intended to be used as vehicle of oppression and coercion against the applicant and amount to abuse of the process of Court.
35. The application is, therefore, allowed and the proceedings pending before First Class Magistrate, Naushero Feroze, are hereby quashed.