' These quashment proceedings under section 561-A, Cr.P.C. Are directed against the order of the learned A.C.M. Mauripur, Karachi West dated 20-6-1990 whereby he had taken cognizance of a case instituted by respondent Muhammad Aslam by way of private complaint under sections 406, 417, 423, 465, 468, 182, 506-B, P.P.C. And also against the order passed by the learned Magistrate, dated 23-10-1991 whereby he had rejected applicant's application under section 249-A, Cr.P.C. The learned Magistrate had however takenK cognizance only under sections 417, 423 and 506-B, P.P.C.
The grievance of the applicant is that the dispute between the parties is of civil nature but respondent Muhammad Aslam has mala fide instituted criminal proceedings to pressurise him. A copy of the private criminal complaint is available on record and from it, it transpires that on 17-10- 1987 applicant Haji Ghulam Ahmed had entered into an agreement of sale with respondent No,2 Muhammad Aslam in respect of premises known as Lakhesar Building located on Plot No,91, Survey Sheet No,M.R. Market Quarters, Kachi Gali No,3, Karachi. Haji Ghulam Ahmed had also indemnified complainant Muhammad Aslam (respondent No,2) against all losses and defects which might arise due to any defect in his title. The total sale consideration was Rs,5 lacs out of which Rs,1 lac is stated to have been paid at the time of execution of the sale agreement and this is an admitted fact. The balance of the sale consideration was payable by the complainant/respondent No,2 Muhammad Aslam within one year of the execution of sale-agreement which was executed on 17- 10-1987. The case of respondent No,2 as per his complaint is that on 1-8-1989 the applicant executed the sale-deed before the Sub-Registrar and the same day respondent No,2 paid the balance of Rs, four lakh in the shape of a pay order for Rs,1,57,000 and Rs,2,43,000 in cash. After this applicant Haji Ghulam Ahmad is stated to have delivered the possession of the premises to the complainant/respondent No,2. However, it was further alleged in the complaint that Haji Ghulam Ahmed failed to produce the requisite permission of Court to sell this property with the result that the mutation of transfer could not be recorded in the name of the complainant/respondent No,2 in spite of repeated demands from the latter. It was also alleged that applicant Haji Ghulam Ahmed also extended threats to the complainant that if (the complainant) went to the office of the applicant to pursue the matter any further he (the applicant) would be kicked out from the office.
Learned Magistrate, apart from recording the statement of complainant/respondent No,2, also examined two witnesses Haider Mian and Syed Sultan Ahmed. Haider Mian has stated that on 1-10- 1989 he had gone to the office of the Sub-Registrar alongwith the complainant where Haji Ghulam Ahmed and Syed Sultan Ahmed were already present and that complainant Muhammad Aslam paid a sum of Rs,4 lacs to applicant Haji Ghulam Ahmed in the form of a pay order for Rs,1,57,000 and cash Rs,2,43,000 whereafter the sale-deed was signed. Haider Mian further stated that Haji Ghulam Ahmed had further promised to produce no obejection certificate from the Court within 15 days. He further stated that he many times went with the complainant to the office of Haji Ghulam Ahmed who made lame excuses which led to the exchange of hot words when Haji Ghulam Ahmed threatened the complainant of dire consequences, with breaking the legs of the complainant and with killing him. Syed Sultan Ahmed in his statement stated that the agreement was executed before him on 17-10-1987 when a sum of Rs,1 lac had been paid by the complainant to Haji Ghulam Ahmed by way of advance payment whereafter on 1-10-1989 sale-deed was executed and presented before the Sub-Registrar and at that time a further amount of Rs,1,57,000 in the form of a pay order and Rs,2,43,000 in cash were paid to Haji Ghulam Ahmed whereafter the sale-deed was produced before the Sub-Registrar who demanded no objection certificate of Court whereupon Haji Ghulam Ahmed promised to produce the same within 15 days but he did not produce the same and lingered on the matter. According to Syed Sultan Ahmed he had many times gone with the complainant to the office of Haji Ghulam Ahmed but the latter never properly replied to the complainant. On the basis of this preliminary enquiry cognizance was taken by the learned Magistrate under sections 417, 423, 506-B, P.P.C.
2. I have heard the learned counsel for the parties and Mr. Zaheer Qureshi Advocate for the State and have gone through the record. A perusal of the R & P of the learned trial Court shows that only the sale agreement dated 17-10-1987 was filed by respondent No,2. Copy of the registered sale- deed has not been filed. There is no proof on record that Rs,4 lacs representing the balance of sale consideration had been paid to the applicant in the office of the Sub-Registrar. There is also no explanation as to why out of the balance of Rs,4 lacs, Rs,1,57,000 have been paid through a pay order but the remaining amount of Rs,2,43,000 had been paid in cash. Natural thing to expect is that the entire amount should have been paid through pay order or, in the alternate, a proper receipt should have been obtained from the applicant. Under the circumstances the claim of the applicant that he had received only Rs,1 lac in advance and Rs,1,57,000 through pay order and the balance of Rs,2,43,000 is still outstanding and on that account he is not willing to get the mutation passed in favour of respondent No,2 appears to be plausible. It may be noted that the applicant delivered possession of the premises to respondent No,2 in anticipation of the payment of the balance of the sale price. The main point of difference between the parties is as to whether a sum of Rs,2,43,000 has been paid by respondent No,2 to the applicant towards the last instalment of the sale price. This is obviously a dispute of civil nature. Learned counsel of respondent No,2, however, refers to para.3 of the agreement of sale wherein the applicant had described himself as "full and absolute owner" of the property when in fact he was not the full and absolute owner, and therefore, he has committed the offence of cheating. There is however nothing on record to substantiate the claim of respondent No,2 that the applicant was not the full and absolute owner of the premises.
There is no reason why the applicant should have promised to produce the Court permission because the complaint itself is silent as to why such permission was at all necessary. Besides, even if the applicant was a limited owner in his capacity as the administrator of this property (as claimed by respondent No,2/complainant but of which there is no prima facie proof on record) it would still not, in my view, amount to cheating in terms of section 415, P.P.C. And which offence is punishable under section 417, P.P.C. Here there is no element of deception or fraud or dishonesty on the part of the applicant. In fact the property in question has not been delivered by respondent No,2 to the applicant as a result of this alleged fraud; on the contrary, the applicant has himself delivered the case property to respondent No,2. Learned counsel for the applicant has relied upon a number of reported judgments on the point that a dispute of civil nature should not be converted into a criminal case. These judgments are Ghulam All v. Jawed 1989 P Cr. L J 507 and Merajuddin and another v. The State 1989 P Cr. L J 441(2). I have also gone through the judgments reported as Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317, Abdul Wahid v. The State 1975 P Cr. L J 28 and Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 in which it is held that when civil and criminal proceedings are pending in respect of the same property, it is premature for an accused to claim discharge at a stage when evidence has not been recorded and that the disputes in the civil suit may not be relevant in the criminal case, and therefore, the private complaint should not be dismissed until some evidence is recorded in the case and that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither alternate nor an additional jurisdiction but one preserved in the interest of justice to redress the grievances for which no other procedure is available to an aggrieved party. Learned counsel for respondent No,2 had also cited before me an unreported judgment of this Court in Criminal Miscellaneous Application No,30 of 1991 decided on 9-3-1992 in which there was prima facie evidence on record connecting the accused with the crime and therefore the learned Judge, relying on an earlier judgment in the case of Ghulam Muhammad v. Muhammad Khan and others PLD 1967 SC 317 had come to the conclusion that pendency of civil suit was no bar to the simultaneous continuation of criminal proceedings. There is no doubt in the correctness of this view. The difficulty in the present case is that respondent No,2 has not made out even a prima facie case of criminal nature against the applicant. The allegation of respondent No,2 that the applicant is guilty of cheating in view of a false declaration in para. 3 of the agreement of sale does not appear to be believed by respondent No,2 himself because if he had believed it he would have immediately returned the possession of the disputed property to the applicant because he (respondent No,2) had obtained it on the basis of this very agreement of sale. Respondent No,2 cannot be suffered to call this agreement fraudulent agreement and at the same time retain the benefits derived therefrom.
3. In short, the documents on record only reveal a dispute of the civil nature which is only this that respondent No,2 claims that the last instalment of Rs,2,43,000 of the sale price was paid by him to the applicant in cash whereas the applicant denies the receipt of this last instalment. This is evidently a dispute of civil nature. The private complaint of respondent No,2 was therefore, misconceived as no offence under sections 417, 423 and 506-B is made out against the applicant on the basis of the complaint and the preliminary enquiry held by the learned Magistrate in respect thereof. I would accordingly set aside the impugned order, dated 23-10-1991 whereby application under section 249-A, Cr.P.C. Filed by the applicant was rejected by the learned Magistrate and I would accept this petition under section 561-A, Cr.P.C. And quash the proceedings pending in the Court of learned Magistrate against the applicant on the basis of the complaint of respondent No,2. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.