JUDGMENT AHMAD SAEED AWAN, J.- The petitioner through this petition under Section 561-A Cr.P.C, seeks quashment of proceedings in the complaint case entitled as "Syed Fayyaz Mahmood vs. Syed Maqbool Hussain Shah" pending in the Court of Syed Munawar Hussain Shah, Magistrate 1st Class, Lahore, Gulberg area under Section 406/506 P.P.C.
2. The learned counsel for the petitioner contends that the complaint prima facie is an abuse of process of law, mala fide and has been filed for the purposes of harassment of the petitioner. As the dispute is of civil nature and civil proceedings in this regard are already pending between the parties before the Civil Court; issues have already been framed and cases are fixed for evidence in respective Courts.
3. The learned counsel for the respondent has vehemently opposed this, petition and submitted that admittedly a suit for specific performance of an agreement filed by the respondent is pending before the learned Civil Judge against the petitioner instituted on 18.4.1994 in which issues have been framed on 10.7.1994 and is fixed for evidence. Further contends that complaint filed by the respondent prima facie discloses a case against the petitioner therefore, the proceedings of complaint cannot be quashed as the process has been issued by the learned trial court after recording evidence; on the basis that civil proceedings between the parties are pending and the matter is also sub judice; there is no bar in law to the simultaneous initiation or progress of civil or criminal proceedings.
4. I have heard the arguments of both learned counsel at length and have perused the record with their able assistance.
5. As per complaint dated 7.5.1994; it is a alleged that on 8.6.1991, the petitioner entered into an agreement to sell Plot No.516 Nargis Block, Allama Iqbal Town, lahore in favour of the respondent for consideration of Rs.6,00,000/-; out of which the petitioner received Rs.3,00,000/- as earnest money and the balance of Rs3,00,000/- was to be paid by the respondent to the petitioner at the time of execution of sale deed to be registered by 31.12.1993; the petitioner has changed his mind and has refused to get the sale deed registered as agreement to sell.
6. As per para. No.4 of the plaint it is alleged that on inquiry from Lahore Development Authority regarding proprietary rights of the said plot, it transpired to the respondent that the proprietary rights had not yet been passed to the petitioner; hence the petitioner committed fraud with the respondent as well as with the Lahore Development Authority.
7. While according to the suit for specific performance filed on 18.4.1994; it is stated in para. No.4 that the petitioner disclosed in the said agreement that there was dispute between him and the Lahore Development Authority which would be probable resolved within two years; in case, the dispute with Lahore Development Authority remains un-settled; even then the petitioner would execute the sale deed in favour of the respondent. As the petitioner failed to resolve his dispute with L.DA. As stated in para. No.5 of the suit; the parties further agreed to extend the period of execution of sale deed from 30.6.1993 to 31.12.1993. If the petitioner failed to complete his documents for execution of sale deed in favour of the respondent by the said date, the agreement to sell would be deemed to have been cancelled and the petitioner would be bound to return the money to the plaintiff.
8. As per suit, the respondent approached the petitioner in the ist week of December 1993 and requested either to execute the sale deed or to return the money; further served legal notice on the petitioner which was received by his daughter on 13.12.1993; inspite of it the respondent did not receive any written intimation from the petitioner; hence the suit was filed.
9. Let me now turn to examine the merits of the complaint; admittedly, the petitioner filed his suit for permanent injunction against the complainant and the S.H.O. Ulama Iqbal Town, Lahore on 123.1994, apprehending mischief at their hands in which a stay order was granted. The respondent made his appearance in the said suit on 16.3.1994 and the case is now fixed for 26.2.1995 before the learned Civil Judge, Lahore.
10. The respondent filed as counter-blast his suit for specific performance of an agreement against the petitioner on 19.4.1994; in which issues have been framed and is pending for evidence in the Court of another learned Civil Judge at Lahore.
11. The complaint was filed by the respondent on 7.5.1994. It is alleged that on 3.4.1994 at about 11.00 A.M; the petitioner as per promise to legal notice dated 12.12.1993 visited the office of respondent to settle the matter; on the demand of repayment of the amount of the respondent, the petitioner threatened him of dire consequences and gave threat of murder to him, while in t he declaratory suit filed on 19.4.1994; filed much prior to the complaint, it is stated that inspite notice dated 12.12.1993 received by the petitioner's daughter oi 13.12.1993; the respondent did not receive any written intimation from the petitioner; hence respondent was left with no alternative but to file the suit for specific performance. If the occurrence would have taken place on 3.4.1994; the respondent would have narrated this fact in the suit. It is evident from the plaint; that contradictory plea has been taken in the complaint; which tantamount to be tainted with malice and in fact is an attempt to coerce the petitioner as argued by the petitioner's counsel.
12. The question arises whether complaint can be stifled by quashment simply on the basis that civil proceedings between the parties are also pending; needs consideration. As observed in case Mirza Naseem Baig vs. Muhammad Iqbal and another (1981 S.C.M.R.315); the principle laid down in this case is that the Court should examine the F.I.R, complaint to see as to whether it makes out an offence and in doing this exercise it should not be influenced by the extraneous material which is not germane to the issue. In case Muhammad Faruq and 2 others vs. The State (1992 P.Cr.LJ. 834) it was held that if facts on record prima fade connects the accused with the offence and it would be premature to prejudge the prosecution case by throttling the same at its very inception and petition for quashing the proceedings was dismissed. In case Tahir-ul-Islam vs. The Stat& and another (1984 P.Cr.L.J .274) it was held "suffice it is to say that there is no bar in law to simultaneously initiate devil and criminal actions. Respondent No.2 who was allegedly defrauded has two fold remedies for the redress of his grievance. First, through criminal proceedings, and secondly, through a civil suit. Each proceeding is independent of the other and is intended for a separate purpose.
13. The principles on which complaint can be quashed were laid down by their Lordships of Supreme Court in case Mina Naseem Baig vs. Muhammad Iqbal and another (1981 S.C.M.R. 315) as under:- The principle upon which the complaint can be quashed is well settled, namely, that the High Court should examine the complaint to determine as to whether it makes out an offence; and in doing this exercise it should not be influenced by any extraneous material which is not germane to the issue. However, it may also be stated here that the High Court is not denuded of its powers to quash the proceedings if it is satisfied from other cogent material that the prosecution was launched for improper motives, merely to harass the accused, or that its continuance would be abuse of he process of the Court or for other reasons which impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue".
14. The observation of the learned trial Magistrate that application under. Section 249-A Cr P.C. Is pre-mature is misconceived. In cases like in hand, on the basis of private complaint, when Magistrate has taken cognizance and issues process and no evidence is recorded; and if the complainant persons are of the opinion, that issuance of the process against them by the Magistrate, amounts to abuse of process of said Court, and if, from the private complaint in question of the accused persons are able to show that the Charge against them cannot be maintained and complaint has been filed mala fide, in order to harass the accused persons, in order to pressurise them to compromise civil suit between the parties, for which civil proceedings in competent Civil Courts are pending between the said parties; application under Section 249-A Cr.P.C, as held in case Khushi Muhammad and 4 others vs. The State (1979 S.C.M.R.94) must moved first before the trial Court. Further as laid down in case Sh. M. Taqi vs. The State (1991 P.Cr.LJ.963)
"Section 249-A Cr.P.C, relieves the Magistrate from the necessity of going on with the trial, if from the evidence available on record, he is convinced that a criminal charge cannot be sustained and there is no probability of the accused being convicted of any offence. The language in which this section is couched makes it clear that the Magistrate has got powers to acquit the accused even before any witness is examined, if from the material placed on record he is satisfied that the charge is groundless. If acting judiciously the Magistrate comes to the conclusion that the allegations, even if admitted to be true, do not constitute an offence or the allegations disclose a case of civil nature which is deliberately turned into a criminal offence.
15. Under Section 249-A Cr.P.C, the trial Magistrate has powers to acquit an accused at any stage of the case, if after giving notice of the said application to the counsel of the complainant or the complainant and after hearing the parties, he considers that the charge is groundless or that there is no probability of the accused person being convicted of any affairs before him, while the High Court has power under Section 561-A Cr.P.C, to quash cases where sending the accused to the trial Court would only perpetuate, if not further exacerbate the abuse of injustice, rather than eliminate it.
16. As per prayer of the respondent in the suit, it is payed" a decree in favour of the plaintiff against the defendant for specific performance of agreement to sell dated 8.6.1991 may kindly be passed with costs, in the alternative, the defendant may graciously be directed to pay double of the amount of a Rs. 3,45,000/- which he received from the plaintiff
17. A perusal of the suit as well as of F.I.R, discloses a breach of contract; a mere breach of contract cannot give rise to a criminal prosecution. The amount so secured is still repayable and can be recovered through the suit pending for adjudication before a competent Court of law. A broken promise by the petitioner is not a criminal offence as all moral wrongs are not necessarily criminal offences.
18. I am of the view, the continuation of the criminal proceedings against the petitioner is an abuse of process of Court and consequently the proceedings pending against the petitioner in the trial Court under Section 406/506 are quashed. The application under Section 561-A Cr. P.C. Is accordingly allowed with no order as to costs.