Applicant Arif Rafiq was prosecuted by S.H.O. Clifton Police Station in the Court of A.D.M., C.I.A.
Karachi, for the offence under section 406, P.P.C., on the report lodged by one Zia-ul-Haque Qureshi (Crime No.284 of 1990). The allegations against the applicant as disclosed in the charge-sheet submitted against him are as follows:-- "Brief facts are that on 9-7-1990 complainant has given an application in which it was stated that accused had taken an amount of Rs.4,35,150 from the complainant for business purposes at an interest of 12% on 15-1-1990, but thereafter the accused had neither returned the actual amount nor interest accrued thereon. .. The accused has played fraud upon complainant while obtaining the aforesaid amount from him. From statement of witnesses and investigation an offence under section 406, P.P.C. Is made out against the accused and challan is submitted against him for legal action."
2. It is the case of applicant that the transaction, if any, is purely of civil nature and the continuation of criminal proceedings against him amounts to an abuse of process of law. It is on this ground alone that the applicant has invoked the inherent jurisdiction of this Court by filing this application under section 561-A, Cr.P.C., with a prayer that the above proceedings pending against him may be quashed.
3. I have heard Mr. Gul Zaman Khan, learned counsel for applicant and Mr. S.ZA. Qureshi, learned counsel for State. The latter has raised a preliminary objection about the competency of this application filed under section 561-A, Cr.P.C. Directly in this Court, as according to him the applicant had a remedy before the trial Court under section 249-A, Cr.P.C.
4. Undoubtedly the trial Courts have got powers under section 249-A or, 265-K, Cr.P.C. To acquit an accused person at any stage of a case and such powers can be exercised even if no witness is examined. The objection which A has been raised by the counsel representing the State was examined by the Supreme Court in the case of Mian Munir Ahmed v. The State, reported in 1985 SCMR 257, and was disposed of in the following words:-- "The powers of the trial Court under sections 249-A, Cr.P.C. And 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."
5. The applicant has assigned reasons for approaching this Court directly 8 and in my view it could be an appropriate case for invoking the inherent jurisdiction of this Court.
6. In considering the question of quashing a criminal proceeding at the initial stage when the evidence is yet to be recorded, the allegations against the accused have to be accepted on face value and then it is to be determined, if they constitute an offence. I may usefully borrow the terse observations made by the Supreme Court in the well-known case of M.S. Khawaja v. The State reported in PLD 1965 SC 287 which are as follows:-- "To quash a judicial proceeding in order to `secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an `abuse', it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
7. One of the important pronouncements on this point is to be found in Ghullam Muhammad v.
Muzammal Khan and 4 others, reported in PLD 1967 SC 317, wherein it was made clear that the powers given by section 561-A, Cr.P.C. Can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.
8. Therefore, the High Court should be extremely reluctant to interfere in a case in which prima facie evidence constituting an offence is disclosed. But, where a civil dispute is turned into a criminal case with a view to cause harassment to accused the High Court will be abdicating its function if it did not come to the rescue of such persons.
9. On a plain reading of F.I.R. And the charge-sheet it seems to me as, clear as daylight that the transaction between the parties is of civil nature and the allegations, even if accepted on face value, would not constitute an offence. Several rulings of different Courts can be cited in support of the contention C raised by learned counsel for applicant, but I may refer only few out of them:--
(i) Ragunath Puri v. Emperor AIR 1932 Pat. 72,
(ii) Heywood v. Emperor AIR 1942 Lah. 134,
(iii) Zafar Niazi v. Riazuddin PLD 1958 Lah. 738,
(iv) J.S. Daver v. Lqbal Qadir and another PLD 1962 Pesh.162,
(v) Mehmood-ul-Hasan v. Imtiaz Khan and another PLD 1963 Lah. 481,
(vi) R.C.P. Guignard v. The State and another PLD 1963 Kar. 868,
(vii) Abdul Rashid v. Moinuddin and another 1972 P Cr. L J 724,
(viii) Abdul Rehman and another v. The State and another 1988 P Cr. L J 2208,
(ix) Mirajuddin and another v. The State 1989 P Cr. L J 441(2),
(x) Haji Muhammad Latif v. Farman Ali and another 1990 SCMR 1299,
(xi) Mian Muhammad Anwar etc. v. Mian Muhammad Waqar Monnoo and the State 1990 P Cr. L J 353,
(xii) Abdul Ghafoor and others v. Raeesuddin and another 1991 MLD 376 and
(xiii) Shaikh Muhammad Taqi v. The State 1991 P Cr. L J 963.
10. As observed in M.M.S.T. Chidambaram Chedtiar v. Shanmugham Pillai reported in AIR 1938 Mad.
129, mere deception or mere dishonesty is not a criminal offence. The effect of bouncing of a post- dated cheque was considered in the above case and it was observed:-- "In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every unmoral act is criminal and it is an abuse of the process of a Court to attempt to create new crime in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises."
11. The sum secured under the bounced cheque is still recoverable through a competent Civil Court.
The issuance of post-dated cheque in such a situation was purely a civil wrong and not a criminal offence.
12. For what has been said above, I accept the application made under section 561-A, Cr.P.C. And quash the proceedings pending against the D applicant in the Court of A.D.M., C.I.A. Karachi, under section 406, P.P.C arising out of Crime No.284 of 1990, Clifton Police Station.