1. ' This is an application under section 439, read with section 561-A, Cr.P.C. Seeking to quash the impugned order issued by the learned 1st Additional Sessions Judge, Tharparkar in D.C. No, 33/1994 whereby the learned trial Court has taken cognizance of the direct complaint filed by respondent No,1 against the applicants and one Abdul Waheed Qadri and thereafter ordered that the complaint be registered as a Sessions case and also process in the shape of bailable warrants in the sum of Rs,10,000 each be issued against the respondents Nos.2 to 4 and accused Abdul Waheed Qadri and also directed that summons be issued against applicant No,l.
2. ' The brief facts of the matter are that on 11-7-1994 a direct complaint was lodged with the Sessions Judge, Mirpurkhas, by the respondent No, 1 which was transferred to the Additional Sessions Judge, Mirpurkhas, who took cognizance of the matter and issued bailable warrants against the applicants etc. As stated aforesaid.
3. ' In the said direct complaint allegations were made that on 13-3-1989 accused one Abdul Waheed Qadri had borrowed Rs, 30,000 from complainant/ respondent No,1 Abdul Aziz and had accordingly executed a promissory note in the said sum in favour of Abdul Aziz in the presence of witnesses Mohammad Ali and Dino. This sum was allegedly for the propose of obtaining a Tender from the Building and Roads Department. After about one year all the four applicants and accused Abdul.
4. Waheed Qadri allegedly approached the complainant and asked him to join Abdul Waheed Qadri as a full-fledged partner in his business Upon which the complainant paid Rs,1,00,000 to the applicants and Abdul Waheed who promised that a proper partnership deed would be executed between all the parties on the next day. However, Abdul Waheed Qadri failed to do so and so also the applicants did not do the needful and kept the complainant on false hopes on the pretext that Abdul Waheed Qadri had left for Middle East and on his return the loan/investment of the respondent would be given back to him. One month prior to lodging of the private complaint the witnesses Mohammad Ali and Dino informed the respondent No,1 that Abdul Waheed Qadri had been seen by them in Gharibabaad going towards his house whereupon the respondent No,1 alongwith the witnesses went to the applicants' house who called them inside and all of them alongwith Abdul Waheed Qadri requested him to forego the money entrusted to them because they had suffered business losses and consequently they were unable to return his money. The complainant then informed the applicants that they had cheated him and that he was going to file a complaint with the police upon which a heated discussion took place. Then the applicants alongwith Abdul Waheed Qadri overpowered the respondent No,1 and took his signatures on a blank piece of paper after having beaten and kicked the complainant. During which process the applicants/accused took away a Seiko watch, gold ring 1/2 tola and cash of Rs,2,100 belonging to the complainant and also kept him under wrongful confinement for about 2 hours. Then the respondent No,1/complainant was rescued by the witnesses who were waiting outside the house.
5. Finally the respondent No,1 went to the police who asked him to file a direct complaint.
6. ' Learned counsel for the applicants has submitted that no prima facie case has been made out by the respondent No,1 as far as the direct complaint is concerned and hence the continuance of the trial would only amount to an abuse of process of the. Court since in the given circumstances there was no possibility of any conviction as the matter related to a money transaction and hence the ingredients of sections 506(2), 420, 406 and 34, P.P.C. Were not attracted. He has relied upon Raza Ali v. The State (1971 PCr.LJ 1296) and Mazhar Ibnehassan Siddiqui v. The State (1997 PCr.LJ 1030).
7. ' On the other hand Agha Ghulam Mohammad Durrani learned counsel for the respondent No,1 argued firstly that the facts of the case should demonstrate ambiguity and that no prima facie case was made out and only then section 561-A, Cr.P.C. Would come into play. It should also be shown that the continuance of the trial would be an abuse of the process of the Court. For this proposition learned counsel has relied upon Muhammad Siddique v. Muhammad Yar (1995 PCr.LJ 1639), Ghulam Nabi v. The State (1996 PCr.LJ 1335) and Ghulam Akbar v. Muhammad Ilyas (PLD 1975 Kar. 231). Secondly learned counsel has submitted that where an alternative remedy is available in the shape of section 249-A, Cr.P.C. Whereby the trial Court has been empowered to quash the proceedings, the High Court should not interfere. In this regard he has relied upon Syed Tahir Hussain Mehmoodi v. The State (PLD 1995 Quetta 76). Finally learned counsel has submitted that as per the impugned order the statement of the accused and the witness were recorded and bailable warrants were issued on the basis that a prima facie case has been made out under sections 506(2), 420, 406, and 34, P.P.C. Consequently he has prayed that in the facts and circumstances of the matter no interference is called for by this Court and consequently this application should be dismissed.
8. ' I have heard the learned counsel and my conclusions are as follows:-- 'As regards the inherent jurisdiction conferred upon this Court under section 561-A, Cr.P.C. It is well- settled law that this should be sparingly used and only when it has been demonstrated that an action, investigation, report or other step in either lodgment of F.I.R./private complaint or the prosecution of a criminal case is patently against the provisions of law or otherwise no case has been made out upon which a conviction was possible. In these circumstances the High Court would be justified in quashing the proceedings as no useful purpose would be served to keep the matter lingering which in fact would amount to an abuse of process of Court. For this proposition reference can be made to Mian Munir Ahmed v. The State (1985 SCM R 257) and State v. Gulzar Ahmed (1998 SCM R 873).
9. ' On the other hand it is equally well-settled that where the allegations disclosed a prima facie case and the trial Court has taken cognizance of the same the proceedings cannot be quashed since the powers vested under section 561-A, Cr.P.0 cannot be utilized so as to interfere in the ordinary course of criminal procedure as laid down in the statute and the High Court should be extremely reluctant where a competent Court of law has only taken cognizance of the matter. For this proposition Ghulam Nabi v. The State (1996 PCr.LJ 1335) and Tahir Hussain Mehmoodi v. The State (PLD 1995 Quetta 76) can be cited. Consequently the facts of the present matter would have to be seen as well as the connected law in order to ascertain whether the learned Magistrate has correctly taken cognizance _ of the private complaint filed by respondent No, 1 . In my opinion as far as the amount of Rs, 35,000 is concerned, which is alleged to have been given by the complainant to Abdul Wahid Qadri and for which he has obtained a promissory note from him this could perhaps be called a simple loan and hence the ingredients of section 420 of the P.P.C., prima facie, would not be attracted. However the second amount of Rs,1,00,000 allegedly given by the complainant to Abdul Wahid as well as the other applicants on the pretext that the complainant would be inducted as a partner in their business and a proper partnership deed would be executed, certainly represents a trust in the hands of Abdul Wahid Qadri and the applicants as far as the complainant is concerned, since this was obtained on the pretext that the complainant would be inducted as a partner in the business of the applicants upon execution of a proper partnership deed. Consequently in my view, the second transaction clearly comes under section 406, P.P.C. Viz. Which contemplates punishments for criminal breach of trust and ingredients of section 405 are attracted to the facts of the case which provides inter alia that whoever being in any manner entrusted with property or dominion dishonestly converts the same to his own use is said to have committed a criminal breach of trust. So also it would be seen that the other allegation in the direct complaint with regard to the beating inflicted upon the complainant and the theft of his watch, gold ring and cash of Rs, 2,100 as well as wrongful confinement would prima facie attract the ingredients of sections 386, 368, 340 of the P.P.C. Which relate to wrongful confinement and restraint as well as section 342, P.P.C. Which provides punishment for the wrongful confinement and restraint and also section 378, ,P.P.C. Viz. Theft.
10. ' As regards the cases relied upon by the learned counsel viz. Mazhar Ibnehassan Siddiqui v. The State and Raza Ali v. The State (supra) suffice it to say that in these two cases the learned Single Judge of this Court come to the conclusion that in the circumstances no offence would seem to have been committed by the accused since the matter pertained to a civil dispute and hence the proceedings before the learned trial Court were quashed. However as I have reached the conclusion that in the present case, prima facie, criminal offences have been made out against the applicants as well as Abdul Waheed Qadri consequently in my view it cannot be said that either the applicants are innocent or there is no possibility of any conviction whatsoever.
11. 'For the foregoing reasons this application was dismissed by a short order on 11-4-2001, the above are the reasons for the same.