' Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed for the quashment of F.I.R. No,426, dated 9-12-1999 under section 406/419, P.P.C.
Registered at Police Station Cantt. Rawalpindi.
2. Briefly stated the complainant (respondent No,3) case is that seeing an advertisement in the newspaper regarding Multi Forex Private Limited, he went to its office and met Sh. Fazal-ur-Rehman and Sh. Hafeez-ur-Rehman over there, who posed themselves to be owners of the said company.
On their motivation, he alongwith Major Zulfiqar Ali Bhatti visited the said office on 12-9-1995 at 10- 10 a.m. He was informed that Mr. Fawad Mirza, a representative of the said company, shall look after his interest and further asked him to deposit the amount in Al-Habib Bank Road Rawalpindi.
Accordingly, the complainant deposited the amount and produced the receipt before them. After about 10 days of the said incident, he was informed that some loss has occurred, so further amount be invested. Accordingly, the complainant deposited 2,000 US Dollars on 31-10-1995 and further deposited a sum of 500 US Dollars each on 9-10-1995 and 26-10-1995. He further stated that the said transactions were made in presence of Major Zulfiqar Ali Bhatti. He further stated that after sometime the said company came to halt. He alleged that both the petitioners got the said amount misappropriated by getting it transferred in their own account. Hence the case.
3. The accused/petitioners have approached this Court for the quashment of said F.I.R. Comments of respondents Nos.2 and 3 have been called and the same have been placed on record.
4. Arguments have been heard and record perused.
5. Contention of learned counsel for the petitioners/accused is that instant F.I.R. Has been lodged just to pressurize them. While elaborating his contention, he submitted that initially a suit for recovery of 25,000 US Dollars was filed by the complainant/respondent No,3 on 17-11-1997 not only against them but as many as six other persons, that the said suit kept on pending in the trial Court till 28-10-1999 when the complainant/respondent No,3 withdrew it and thereafter filed the instant complaint on 9-12-1999, that case has been registered under section 406/419, P.P.C. But ingredients of said offence are not made out from the contents of F.I.R., that it is evident from the F.I.R. That no amount was ever entrusted to the petitioners so the question of its criminal breach of trust and commission of an offence under section 406, P.P.C. Does not arise, that offence under section 419, P.P.C. Is punishable if some person cheats by impersonation, that there is no such allegation in the F.I.R., as such commission of this offence also does not arise, that there is no explanation of the fact as to why the civil suit filed was withdrawn without seeking any permission to refile the same and why the complainant chose to initiate criminal proceedings, that withdrawal of civil suit and filing of instant F.I.R. Is just to pressurize them, that from the contents of F.I.R., the matter appears to be of civil nature, as such continuation of criminal proceedings is not warranted by law. He thus, submits that under the circumstances referred above, allowing of proceedings to continue will amount to perpetuate the illegality and would amount to abuse the process of Court. He further submits that provision of section 561-A, Cr.P.C. Can be pressed into service to undo the pressure tactics to bring a person to Criminal Court for non-fulfilment of civil obligations and placed reliance upon Javaid Hamid v. Hassan Jan and 2 others PLD 1991 Pesh.
121. He further contended that even if it is assumed that some breach of contract has occurred between the parties, even then it will not give rise to criminal prosecution as the amount so secured can be recovered through a competent civil Court and placed reliance upon Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963. He further argued that the registration of case is proved to be mala fide on the face of record as the matter appears to be of purely civil nature, and the criminal proceedings have been initiated to harass the petitioners/accused, as such proceedings are liable to be quashed and placed reliance upon Ch. Pervaiz Elahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 M LD 615 and Abdul Ghafoor and others v. Raeesuddin and another 1991 M LD 376.
6. Conversely, stand of learned counsel for the complainant/respondent No,3 is that mere pendency of civil suit is no bar to the registration of case and placed reliance upon Rehmatullah v.
Abdul Aziz and another 1974 PCr.LJ 541. He further argued that the police has got a statutory right to investigate a cognizable offence and even submission of final report does not bar further investigation of a case. He further argued that inherent jurisdiction of High Courts is neither alternative nor additional in its character and is not intended to invest the High Courts with powers to pass any order considered fit in the interest of justice and placed reliance upon Syed Saad Bin Zarif v. The State 1993 PCr.LJ 223. He further argued that even mere fact of pendency of civil proceedings prior to commencement of criminal proceedings is no bar and quashment of criminal proceedings under such circumstances have been declined and placed reliance upon Khadim Ali and 3 others v. The State and another PLD 1982 Lah.
512. He also referred to certain other authorities on the point and asserted that as names of the accused/petitioners specifically appear in the F.I.R. And they have been attributed a specific role, so proceedings cannot be quashed.
7. The only point which requires determination is, if on the basis of averments contained in the F.I.R.
Offence under section 406/419, P.P.C. Is made out against the accused/petitioners or not. A perusal of the F.I.R. Reveals that the complainant/respondent No,3 approached the office of Multi Forex Private Limited and found the accused/petitioners present over there who posed themselves to be owners of the said company. The contents of F.I.R. Reveal that no amount was ever offered or accepted by the accused/petitioners or any transaction was made through them. The complainant admits that he had deposited an amount of Rs,10,000 US Dollars in Al-Habib Bank Road Rawalpindi in the account of Multi Ferox Private Limited and thereafter had also been depositing certain amount in the said bank., It is nowhere the stand of the complainant that he ever gave any amount to the accused/petitioners or they cheated him and misappropriated any amount. This being the factual position, the question of commission of offence under section 406/419, P.P.C. Does not arise. It is also to be noted that had the accused/petitioners defrauded or cheated the complainant/respondent No,3, why the complainant waited for more than four years in lodging the F.I.R. The complainant initially approached the civil Court and filed a suit for recovery of Rs,25,000 US Dollars in November, 1997. That suit kept on pending in the said Court and thereafter it was withdrawn from the said Court on 28-10-1999. The mere fact that complainant resorted to civil proceedings in the first instance shows that a civil dispute, if at all, existed between the parties and criminal proceedings have been initiated just to pressurize them to yield to his illegal demand.
8. There is no cavil to the proposition that mere pendency of civil suit does not absolve a party from criminal proceedings, provided the facts of the case establish the same. But if the facts of the case do not disclose mens rea or constitute any offence, then to allow the proceedings to continue amounts to abuse of the process of the Court and its pendency cannot be allowed to be used as an instrument of harassm ent or coercion for attainment of unlawful purpose.
9. In the instant case, first information report had been lodged after about 4 years of the occurrence and about two years of institution of civil suit. It is thus, clear that criminal proceedings have been resorted as vehicle of oppression and coercion against the petitioners/accused which amounted to I B abuse of process of the Court
10. The upshot of the above discussion is that from the contents of F.I.R. No case under section 406/419, P.P.C. Is made out against the accused/petitioners, so continuation of criminal proceedings under such circumstances will amount to abuse of the process of Court which is not permitted by law. Accordingly, petition is accepted and proceedings emanating from F.I.R. No,426, dated 9-12-1999 under section 406/419, P.P.C. Registered at Police Station Cantt. Rawalpindi are hereby quashed.