ZIA MAHMOOD MIRZA, J.---This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, dated 14-12-1993 passed in Criminal Miscellaneous No.343- M of 1993 whereby an order dated 18-1-1993 of Additional Sessions Judge, Sheikhupura, passed in exercise of his revisional jurisdiction, summoning the respondents to face the trial for offences under section 420/468/471, P.P.C. In a complaint case filed by the petitioner, was quashed.
2. The facts giving rise to this petition, briefly stated, are that the petitioner filed a complaint against the respondents Ch. Shah Muhammad and his son Ghulam Mohi-ud-Din under section 420/468/471/409, P.P.C., in the Court of Magistrate First Class, Ferozewala on the allegations that he i.e. The petitioner is a Managing Partner of M/s. Zeemko International, Lahore and is also an Agent in Pakistan for M/s. Modul Systeme J.J., Binder, KG, West Germany to sell new and secondhand Particle Board and plywood manufacturing machinery; that Ch. Shah Muhammad respondent No.1 of M/s. Compact Particle Board (Pvt.) Limited, Lahore purchased secondhand Particle Board Machinery from the petitioner's Principal (M/s. Modul Systeme) which was to be brought to Pakistan; that respondent No. l asked the petitioner to request his Principal to ship the machinery to Pakistan and gave an assurance that he would make the payment to the petitioner on the machinery reaching Pakistan; that on this assurance the petitioner requested his Principal who shipped the machinery to Pakistan but when the machinery reached Karachi, respondent No.1 dishonestly tried to get it cleared from Customs Department without making any payment; that on coming to know of this, the petitioner asked his Principal to instruct the shipping company to withhold the machinery; that respondent No.'. Then agreed to keep the machinery in some bounded warehouse until the full payment was made by him; that pursuant to this agreement, the machinery was entrusted to M/s. Taj Company Limited which had a bounded warehouse at Sheikhupura Road and the said company was also given written instructions as to the manner in which the machinery was to be released. It was further alleged in the complaint that respondent No.1 and other Directors of M/s. Compact Particle Board "in violation of written and implied instructions" and in connivance with Muhammad Saleem, Chairman of M/s. Taj Co. Ltd. "dishonestly removed the entrusted machinery from the warehouse" by filing forged documents with the Customs Department, while the originals thereof were lying with the complainant/petitioner and thus, "cheated the complainant of an amount of DM 3,43,434 approximately equivalent to Pak Rs.37,30,380 by removing the machinery without making payment while Sh. Muhammad Saleem committed criminal breach of trust as merchant and agent".
3. The Magistrate before whom the complaint was filed recorded the statements of the petitioner and his to witnesses Muhammad Sadqain and Shaukat Ali by way of preliminary evidence.
Petitioner also placed on record some documents including an agreement executed between M/s. Compact Particle Board and M/s. Modul Systeme, the import licence and bill of lading. The Magistrate by his order dated 31-5-1992, dismissed the petitioner's complaint mainly on the ground of delay.
4. Petitioner preferred a revision against the dismissal of his complaint which was accepted by the Additional Sessions Judge, Sheikhupura by his order dated 18-1-1993, holding that "Statement of the complainant, statements of the P.Ws. Contents of the complaint coupled with the document available on the record were sufficient to show that prima facie the respondent has committed an offence under section 420/468/471, P.P.C." The respondents were accordingly summoned to face trial for the said offences.
5. Feeling aggrieved, respondents filed a petition in the Lahore High Court under section 561-A read with section 439, Cr.P.C., praying that the order of the learned Additional Sessions Judge dated 18- 1-1993 summoning them to face the trial be set aside. The petition was allowed by a learned Judge of the High Court who quashed the order of the Additional Sessions Judge with the observation "the question involved is about the claim of one party against the other and that is clearly covered by the arbitration clause. No criminal case, in any case, would succeed whatever amount of evidence or the documents annexed with the petition is formally proved on the record". This was vide judgment dated 14-12-1993 impugned in this petition.
6. We have heard the learned counsel for the petitioner and also the learned counsel appearing for the caveators/respondents. Learned counsel for the petitioner has submitted that in view of the allegations made in the complaint which were also supported by the preliminary evidence, oral and documentary, recorded by the Magistrate, a prima facie case under section 420/468/471, P.P.C. Was made out against the respondents and it was rightly so held by the learned Additional Sessions Judge in his comprehensive judgment. Learned counsel has made a grievance that the learned Judge in the High Court instead of adverting to the material/evidence available on the record which was duly considered by the Additional Sessions Judge proceeded on erroneous premises that because there was an arbitration clause in the agreement, criminal case would not succeed whatever amount of evidence may be brought on the record. Learned counsel assailing the validity of this view has contended that existence of arbitration clause may be relevant of the purpose of disputes of civil nature arising under the agreement/contract but it would not bar criminal prosecution if on the facts stated/alleged, commission of a criminal offence is made out.
In the circumstances. It is urged, the High Court should have examined the allegations in the complaint and the evidence adduced in support thereof and if on such an examination, it came to the finding that the material/evidence on the record, even if believed, did not disclose any offence, it could quash the proceedings but in the present case, no such finding has been recorded.
According to the learned counsel, in the absence of such a finding, it was not available to the High Court to set aside the order of the Additional Sessions Judge summoning the respondents which order was passed after recording a finding on the basis of evidence that a prima facie case was made out against them. In support of his submission, learned counsel has relied on "Ghulam Muhammad v. Muzammal Khan" (PLD 1967 Supreme Court 317) wherein it was held that the inherent jurisdiction under section 561-A, Cr.P.C. Is not to be so utilised as to interrupt or divert the ordinary course of criminal procedure and the High Court should be extremely reluctant to interfere 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 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.
7. Learned counsel appearing for the respondents, on the other hand, has contended with reference to some of the documents not placed before the Magistrate that the dispute between the parties was of civil nature and the petitioner brought a false complaint against the respondents to harass them.
8. Having considered the submissions of the learned counsel for the parties, we grant leave in this case to examine whether the order of the Additional Sessions Judge dated 18-1-1993 summoning the respondents to face the trial for the offences mentioned therein was sustainable in law and on the material available on the record and whether the High Court was justified in quashing the said order in exercise of its inherent powers under section 561-A, Cr.P.C.