This will dispose of Criminal Miscellaneous Nos.30-Q and 34-T and Transfer Application No. 91-C of 1988.
2. The facts giving rise to these petitions are these. Sh. Muhammad Shatique, the first petitioner in Criminal Miscellaneous No.30-Q of 1988, is a dealer in agricultural pesticide medicines and has his place of business in Sukkur, Sindh, the third petitioner, Ijaz Akram, is the owner of Sohail Popular Traders and has his place of business in Mian Channu, District Khanewal, and the second petitioner, Nisar Ahmad Oureshi, a resident of Quetta, is stated to be a friend of the first petitioner. By means of builty No. 962 dated 17-2-1987, Sh. Muhammad Shafique (hereinafter to be referred to as the first petitioner) despatched pesticide medicines comprising 444 cartons by means of Truck No.1417 M.N.G. Of the Sindh Hazara Goods Transport Company of the value of Rs.15,62,260 to Sohail Popular Traders Mian Channu. As these goods did not reach the consignee, the first petitioner had a case under sections 407, 420 and 406 of the P.P.C. Registered at Police Station `B' Division Sukkur on 12-3- -1987. The Sukkur police started the investigation of the case and in that connection visited Mian Channu. They found that the consignment had been "fraudulently received" by the respondent, Abdul Hameed, (to be referred to as the respondent) "as against Ijaz Akram owner of Sohail Popular Traders". The police arrested the respondent, produced him before the Resident Magistrate and the latter released him on bail on 21-3-1987. On 20-3-1987, the first petitioner and the respondent executed two arbitration agreements, agreeing to refer their dispute to arbitration; the first petitioner nominated Master Muhammad Saeed and Nazar Abbas as his arbitrators and the respondent nominated Muhammad Sarwar Ghazi and Rafi Anwar Chohan as his arbitrators. The arbitrators, in their turn, appointed Ch. Farzand Ali as the umpire. The arbitrators met on 21-3-1987 and after hearing the parties, found:--
(1) that the respondent had had business dealings with Sh. Majid of Sukkur and that the latter owed a sum of Rs.6,50,000 to the respondent;
(2) that the said Sh. Majid had informed the respondent that he had despatched the goods and that he should receive them;
(3) that it was on that representation of Sh. Majid that the respondent had received the goods; and
(4) that the respondent had paid, on being told to do so by Sh. Majid, a sum of Rs.3,00,000 to the first petitioner.
The arbitrators decided that the respondent would keep the pesticide medicines worth Rs.3,00,000 and deliver the remaining pesticide medicines to the Messrs Sohail Popular Traders; that the respondent should pay Rs.15,000 to the first petitioner on account of expenses and that the respondent should, after deducting the amount of his commission, pay the value of the remaining goods to the first petitioner.
3. In pursuance of this arbitration award, the first petitioner executed an agreement dated 22-3- 1987, saying that the dispute in regard to the pesticide medicines of the value of Rs.11,36,470 had been resolved between him and the respondent; that he had received Rs.4,36,470 from the respondent and that the respondent had executed in his favour a pronote dated 22-3-1987 regarding the remaining sum of Rs.7,00,000. The agreement went on to say that out of those 7,00,000, Rs.1,63,530 would be paid in cash by 30-3-1987 and that the remainder would be paid to him by 31-7-1987. This agreement was attested by Rafi Anwar and Muhammad Sarwar Ghazi. It appears that later a sum of Rs.1,53,530 (instead of the agreed sum of Rs.1,63,530) was paid by the respondent by means of a cheque dated 19th of April, 1987.
4. The respondent riled a complaint on 18-7-1987 against the first petitioner, Sh. Muhammad Shafique, and three others, named Nisar Ahmad Qureshi; Abdul Majid and Ijaz Akram under Sections 468, 471,384, 500, 506 and 420 of the P.P.C. And instituted a suit for the recovery of Rs.20,23,712 on 21-7-1987. Both the suit and the complaint were founded on substantially the same facts. They-can be shortly stated as follows. The respondent had business dealings with one Abdul Majid of Sukkur. The latter and the first petitioner were business partners and Nisar Ahmad Qureshi, petitioner, was their friend. The respondent had paid Rs.5,99,304 to Abdul Majid and he had promised to supply him pesticide medicines but did not do so during the year 1986. On 16-2-1987, the respondent met Abdul Majid in Sukkur and asked for the return of his money. At that time, the petitioners, Sh. Muhammad Shafique, Nisar Ahmad Qureshi and Ijaz Akram, also happened to be with Abdul Majid. They assured the respondent that Abdul Majid would supply pesticide medicines to the respondent. On 19-2-1987, the respondent was informed by Asif Iqbal Manager Mian Channu Goods Transport Company that his goods had reached from Sukkur and that he should receive them. The respondent, however, found that the consignor of the goods vide builty No.962 dated 17- 2-1987 was the first petitioner and the consignee of the goods was Sohail Popular Traders Mian Channu. The respondent contacted Abdul Majid on telephone, telling him that the builty was in somebody else's name, yet he had asked him to receive the goods. Abdul Majid and Sh.
Muhammad Sharique, petitioner, however, told him that the goods were intended for him and that he should take their delivery and send a sum of Rs.3,00,000 to the first petitioner. This whole talk was tape-recorded. Later, the respondent received the goods and on 26-2-1987 sent the sum of Rs.3,00,000 to the first petitioner through the United Bank Limited. There was then some dispute on the payment of commission; the respondent thought that a sum of Rs.2,00,000 was due to him and the same should be paid to him. This led to some threats from the first petitioner. On 19-3-1987, the respondent and his son were taken to the Police Station Mian Channu by an A.S.I., who was accompanied by the first petitioner and his son. There the respondent learnt that on 12-3-1987, the first petitioner had a case under Sections 406, 407, and 420 of the P.P.C. Registered against him at Sukkur. The respondent and his son Asif Iqbal were produced before the Resident Magistrate and he released them on bail on 21-3-1987.
5. On 21-3-1987, when the respondent was in police custody, Sh. Muhammad Shafique, Nisar Ahmad Qureshi and Ijaz Akram met him and threatened him with serious consequences, if he did not pay the entire value of the goods; they suggested that he should have the dispute resolved through arbitration. The respondent told them to contact his brother, Abdul Rahim. On the same day, the arbitration agreement referred to alcove was written. The arbitrators decided the matter and in pursuance of the arbitration award, documents referred to above were written, namely, the agreement by the first petitioner acknowledging the receipt of Rs.4,36,470 and the pronote promising to pay Rs.7,00,000 from the respondent, out of which Rs.1,63,530 were to be paid by 30-3- 1987 and the remainder by 31-7-1987. Accordingly a sum of Rs.1,53, 530 was paid by the respondent to the first petitioner on 19-4-1987. At the time of that payment, the first petitioner had promised to return an agreement dated 17-2-1987, which Ijaz Akram had allegedly executed in favour of the first petitioner, but on the inquiries made by the respondent, it transpired that no such agreement existed.
6. It was, therefore, the respondent's case in the complaint that the agreement dated 17-2-1987 had been forged and a forged agreement had been produced before the arbitrators and that the accused persons had by fraud and intimidation, received a large sum of money from the respondent and had also obtained the pronote for Rs.7,00,000. It was also said that the criminal case against the respondent was a false case and was cancelled and that owing to that false case the respondent had suffered in reputation and business goodwill.
7. It ought to be mentioned here that the sum of Rs.20,23,712 claimed in the civil suit of the respondent was made up of Rs.1,23,712 allegedly paid by the respondent in excess of the sum due, Rs.10,00,000 for loss of business goodwill, Rs.2,00,000 on account of physical and mental torture suffered by the respondent on account of the false criminal case, Rs.5,00,000 on account of loss in business suffered by Asif lqbal and Rs.2,00,000 on account of other physical and mental sufferings.
8. It is stated that the petitioners had been summoned to stand their trial but had not yet entered appearance before the trial Magistrate. Although, according to the complaint, the criminal case against the respondent in Sukkur had been cancelled yet learned counsel for the parties agreed before me that that case was pending and that a petition under Section 561-A of the Cr.P.C.
Seeking its quashment was pending decision.
9. Learned counsel for the petitioners maintained that it was the respondent Abdul Hamid who had committed fraud by receiving the goods of the first petitioner, knowing that the consignee of the goods was Popular Traders Ghalla Mandi Mian Channu. In any case, so argued the learned counsel, the dispute between the parties was a dispute of civil nature and it would be abuse of the process of the Court to allow the respondent to have that dispute resolved through criminal proceedings. In the alternative, learned counsel for the petitioners argued that as the questions raised in the criminal case and the civil suit are the same, the proceedings of the criminal complaint should be stayed under section 561-A of the Cr.P.C. For his contention, learned counsel relied upon N. Manak J.1. v. Fakhar lqbal and another 1969 P Cr. L J 411. While the learned Assistant Advocate-General agreed that the dispute subject-matter of the complaint was a dispute of civil nature, learned counsel for the respondent argued that the facts stated in the complaint disclose the commission of offences mentioned therein and in any case, the questions to be tried in the complaint are questions of fact and cannot be decided without evidence. According to him, the proper remedy for the petitioners is an application under Section 249-A of the Cr.P.C.
10. It is well-settled that the power under Section 561-A of the Cr.P.C. Is an extraordinary power; that every case should be allowed to proceed according to law and that resort to the provisions of Section 561-A of the Cr.P.C. "should not be lightly made, as this would circumvent the due process of law". However, each case "must be judged on its own special facts and circumstances" and there is 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 persons to unnecessary harassment".
See Raja Haq Nawaz v. Subedar Sakhi Muhammad and others 1968 SCMR 1256.
11. The power, which Section 561-A of the Cr.P.C. Recognizes to exist in the High Court to prevent abuse of the process of any Court is an inherent 13 power. The reason why this power exists was stated by Lord Denning MR in Goldsmith v. Sperrings Ltd. (1977 2 All E.R. 566, 574): "In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. Sometimes abuse can be shown by the very steps being taken in the Courts"
At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself, then it is a wrong known to the law. This appears distinctly from the case which founded this tort. It is Grainger v. Hill (1!138) 4 Bing N.C. 212 which arose out of the old process of capias. The plaintiff recovered damages for abuse of the process. It had been abused because it had been taken, as Tindal, C.J. Said: ---to effect an object not within the scope of the process ' and as Bosanquct J said: ---the process was enforced for an ulterior purpose------.
12. It is on this principle that it has been held that if the dispute, subject--matter of the criminal proceedings is a dispute of civil nature, the criminal proceedings will be quashed under Section 561-A of the Cr.P.C. See Muhammad Ali and another v. Assistant Commissioner, Narowal and another 1987 SCMR 795.
13. Now the facts, which standout clearly, are that pesticide medicines of the value of Rs.11,00,000 or more were despatched by means a truck from Sukkur by the first petitioner for Sohail Popular Traders Mian Channu; that those goods were received by the respondent, knowing that the goods were intended for Sohail Popular Traders Mian Channu and not for him; that a case under sections 420, 407 etc. Of the P.P.C. Was registered against the respondent at Sukkur on 12-3-1987; that in connection with that case, the respondent was arrested in Mian Channu by an A.S.I. On 19-3-1987; that the first petitioner had executed an agreement on 20-3-1987 and the respondent on 21-3-1987 referring the dispute to arbitration; that the first petitioner had nominated Master Muhammad Saeed and Nazar Abbas as his arbitrators and the respondent had nominated Muhammad Sarwar Chohan and Rafi Anwar, all residents of Mian Channu; that the arbitrators had, in their turn, appointed Ch. Farzand as umpire and that the arbitrators entered upon the reference and gave a unanimous award on 21-3-1987 resolving the dispute in the manner stated above.
14. Though it was said that when the respondent was approached by the petitioners for the matter to be referred to arbitration he was threatened that if he did not agree, he would suffer humiliation, yet it does not appear to be the case of the respondent that he had not entered into the arbitration agreement of his own accord. He had referred the petitioners to his brother Abdul Rahim and it was probably on his intercession that the arbitration agreements were executed. Nor does it appear to be the respondent's case that he had not taken part in the arbitration proceedings. The arbitrators nominated both by the first petitioner and the respondent were all from Mian Channu, to which place the first petitioner was obviously a complete stranger. That the respondent has no grievance to make against the arbitration agreement and arbitration award is also clear from the fact that he has not challenged them in any Court of law. Even in the civil suit, no allegations going to their validity were made. Not only that but the respondent had by executing a pronote in as big an amount as Rs.7,00,000 and paying part of it, Rs.1,53,530, also acted upon the arbitration award. The agreement dated 17-2-1987 which it was said the first petitioner had promised to deliver to the respondent and which was later found to be a forged document was an agreement between the first petitioner and Ijaz Akram. Its copy had not been placed on the record and it is not known what it was about.
15. This is, therefore, one of those exceptional cases, in which the facts leave one with the clear impression that the respondent's criminal complaint dated 18-7-1987 was made to exert pressure to achieve an improper end and is, therefore, abuse of the process of the Court. It was a counterblast to the criminal case against the respondent registered at Sukkur on 12-3-1987 and was a means, and if I may say so unfair means, to resolve a dispute of purely civil nature, namely, whether the payments made or promised to be made by the respondent to the first petitioner were or were not due to him in pursuance of the arbitration agreements and the award referred to above. It is also plain that whether or not the criminal proceedings against the respondent pending at Sukkur are false and the resulting arrest of the respondent and his son at Mian Channu can give rise to a cause of action under sections 500 and 506 of the P.P.C. Is a question, which must wait till the decision of the Court in those proceedings.
16. In the result, the complaint case dated 18-7-1987 against the petitioners is hereby quashed.
Consequently, transfer application No.34-T of 1988 is dismissed as having become infructuous.
17. Learned counsel for the petitioners did not press TA. No.91-C of 1988. It is dismissed as withdrawn.