1976 P Cr (PLP)

Muhammad Ahmad Bari for the State. Date of hearing: 15th May 1975. A. J. Thakar Dass who is petitioner No. 1 in these proceedings is a 'retired Superintendent of Food Department and is running a concern, known as Smith and Company. Petitioners 2 and 3 who belong to Sialkot and petitioner No. 4 who is a resident of Lahore are his employees, All the petitioners are alleged to have gone to Bahawalnagar on the 17th of January 1974 where Muhammad Inayat, petitioner No. 2 is alleged to have approached Muhammad Ismail, complainant, and posed himself to be an employee of an "English Firm" which was likely to get a petrol pump installed near the Canal for which purpose they allegedly required "brackets" for "wooden gutters". After selecting some brackets which were available with Muhammad Ismail, Muhammad Inayat allegedly induced the complainant to be a contractor for supply of the material to the Firm. Inayat left for the Rest House where petitioner No. 1 was, according to him, staying and promised to come back the next morning. However, the same evening Inayat again contacted the complainant and told him that he had talked the matter over to hrs employer. It was further alleged in the F. I. R. that next morning Inayat took the complainant along to the Rest House where petitioner No. 1 told the latter that in order to enable him to supply the wooden brackets, he would arrange for him a "German Saw" for the purchase of which he shall have to deposit cash security to the tune of Rs. 1000 besides a personal bond of a surety. The complainant told petitioner No. 1 that he had only Rs. 200.00 with him whereupon the former asked him to pay the same. The complainant, it was further alleged, handed over the amount of Rs. 200.00 to petitioner No. 1 who promised to visit his shop personally. The complainant stated that while he was returning from the Rest House he suspected some mischief at the hands of petitioner No. 1 and his servants and, therefore, went back to the Rest House, but by then all the petitioners had already left. It was also alleged that he had searched for the petitioners in the whole of the city, but they were not traceable, Muhammad Ismail therefore, lodged a report at Police Station Saddar, Bahawalnagar, on the 18th of January 1974, All the petitioners were arrested the same day. The matter, after investigation, is now pending in the Court of Mr. Muhammad Afzal Khan, Magistrate 1st Class, Bahawalnagar. The petitioners have filed this petition under section 561‑A of the Code of Criminal Procedure for quashment of the proceedings on the ground that they are unnecessarily being humiliated and the proceedings are an abuse of the process of the Court.

2. I have heard the counsel for the parties and have gone through the record of the trial Court. I have also seen the comments of the trial Magistrate which he has submitted in Transfer Application No. 150/T of 1975 arising out of the same case.

3. The petitioners were arrested as far back as the 18th of January 1974 immediately after the case was registered against them. When were they produced before the Magistrate on the 19th of January 1974, he passed an order stating that since the offence under section 420, P. P. C. was bailable, the petitioners should be admitted to bail on their furnishing security in the sum of Rs. 10,000.00 each, with a personal bond each in the like amount. The case was adjourned to the 25th of January 1974. trail‑bonds were not furnished. On the 26th of January 1974, the petitioners were sent to judicial lock‑up, and the case was adjourned to the 1st of February 1974. If he order sheet shows that the investigation bad been completed and the challan was lying with the prosecution branch. On the 30th of January 1974, one Ahmad Yar stood surety for Muhammad Irshad, but his bail‑bond was rejected on the ground that since the accused was a resident of Lahore, the surety should be a reasonable person, and that some Lambardar of good means should stand surety. The trial Magistrate failed to give reasons which compelled him to think that Ahmad Yar was not a man of means. No orders were passed in the case from the 1st of February to the 5th of February. On the date last mentioned, the petitioners were again remanded to judicial lock‑up till the 15th of February. In the meantime, on the 8th of February, petitioner No. 1 was granted bail. Again there is no order forthcoming from the 15th of February to the 14th of March, for full one month. Although it was stated on the 26th of January that after the investigation the challan had been submitted to the prosecution branch, yet the challan could not be scrutinized during all this period. On the 15th of March, again a request was made for time to scrutinize the challan. The Magistrate adjourned the case till the 25th of March. In the meantime, on the 20th of March, Muhammad Irshad was admitted to bail. On the 16th of March it was again reported that the challan has not been scrutinized when the case was adjourned to the 4th of April. The remaining two accused were sent to judicial lock‑up. On the 5th of April Inayat, petitioner was granted bail, but since the challan had not yet been scrutinized, the case was adjourned to the 15th of April and Gulzar, the fourth accused in the case, was sent to judicial lock‑up. On the 11th of April Khushi Muhammad stood surety for Gulzar, but his bail‑bond was rejected on the ground that since he had already Mood surety for Muhammad Inayat, he could not be a surety for another accused. This order is really fantastic. The trial Magistrate had failed to state that Khushi Muhammad had no means to stand surety for another person. In the bail‑bond itself it was stated that Khushi Muhammad was the owner inter alia of two squares and sixteen acres of agricultural land. Surprisingly, however, on the 16th of April, it was reported that the investigation bad not yet been completed. The Magistrate acted machinery and adjourned the case to the 24th of April without applying his mind to the facts of the case. He should have been conscious of the fact that it :vas as tar back as the 26th of .January that a statement bad been made before him that after completion of the investigation the challan had been submitted for its scrutiny to the prosecution branch. On the 25th of April, again it was reported that the investigation had not been completed and the case was adjourned to the 9th of May, and Gulzar, accused was remanded to judicial lock‑up On the 27th of April, one Muhammad Hussain stood surety for Gulzar his bail‑bond too was rejected on the ground that one of the witnesses was Sanaullah who had in some other cast also stood as a witness to the surety in that case. The Magistrate observed that he could accept the bail‑bonds only if some other respectable person and the surety himself could make statements in Court giving particulars of the land owned try the latter. I have not bean able to appreciate the way in which the trial Magistrate had behaved in this case. On the 7th of May one Noor Jahanian who was the son of a Lambardar stood surety for Gulzar, but his bail‑bond was again rejected on the pretext that since he himself was not a Lambardar his bail‑bond could not be accepted. It was only on the 9th of May, i.e. after about four months that Gulzar could get himself out of the judicial lock‑up, particularly in a case where the allegation was that he, along with three other persons, had allegedly defrauded the complainant for an amount of Rs. 200.00, besides the fact that tine offence was bailable one of which the Magistrate was conscious right from the 19th of January 1974 when the accused were, for the first time, produced before him. In paragraph 3 of the petition, it was alleged that the petitioners were kept in lock‑up for four months and though they had produced not less than eighty sureties they were not released on bail and that for an alleged total amount of Rs. 200.00 all the petitioners were required to furnish security in the sum of Rs. 10,000.00 each with a personal bond in the like amount. To this, the reply of the trial Magistrate is: "As offence was bailable it was ordered that if the accused produced one surety each in the amount of Rs. 10,000 and their personal bond in the like amount, they should be released. As no surety had appeared before this Court the petitioners were sent to jail, Bahawalnagar. However, Sir some unknown and unsatisfactory persons had tried to stand surety for the accused but they were not accepted because the accused petitioners were the residents of Lahore and the sureties were not the men of means." I am not at all convinced with this explanation and would straightaway reject the same.

4. Added to above, the petitioners hall, in the Court of the trial Magistrate at Bahawalnagar, appeared as many as six times from the 15th of May to the 11th of October 1974, but the case was on each date of hearing adjourned on the ground that the challan had not been put in the Court. It was not presented in Court tall the 15th of December 1974, when the accused again appeared. The case of the petitioner is that they have by now spent at least Rs. 2,000.00 as journey expenses etc., and the proceedings before the Magistrate have not yet started. The challan was presented only on the 12th of February 1975, after more than one year of the registration of the case. The manner in which this case was dealt with by the police and the prosecution branch besides being highly depreciable raises strong doubts to their bona fide intentions. This is not all. The petitioners had moved the quashment petition in this Court on the 15th of March 1975. The same day their counsel, Mr. Rafiq Ahmad Malik, sent as telegram apprising the trial Magistrate of the sate Despite that be issued notices to the sureties of the petitioners in the 17th of March 1975. Again, on the 25th of March 1975 the counsel for the petitioners sent the trial Magistrate that the proceedings in the case had been the High Court. Surprisingly enough, the trial Magistrate the sureties of the petitioners to show cause why their bail-bond be not forfeited in the event of their failure to produce the accused on the 14th of April 1975,. Both the telegrams are on the record trial Magistrate. When the proceedings in the case had been stayed by this Court, the order of the Magistrate issuing notices to the sureties of the petitioners was wholly uncalled for and not in good faith.

5. It is true that the delay in investigation of a case is no good ground for quashing the proceedings, but here the delay is not simpliciter. The petitioners were accused of having cheated the complainant to the tune of Rs. 200,

00. They were arrested on the same day the F. I. R. was lodged, i. e., the 18th of January 1974. Petitioner No. 1 was granted bail after 21 days of his arrest on the 8th of February 1974; petitioner No. 3 after over two months on the 20th of March 1975; petitioner No. 2 remained in the judicial lock‑up for over two months and a half and was granted bail on the 5th of April 1974, and petitioner No. 4 was not allowed bail for a period of about four months till the 9th of May 1974. Besides, the amount involved in the case was Rs. 200.00 only but the petitioners were ordered to be released on bail only if they could furnish security in the sum of Rs. 10,000 each, with their personal bonds in the like amount. Above all, the bail bonds of even those persons who were men of means had not been accepted by the trial Magistrate on flimsy grounds. The dilatory attitude adopted at all levels viz., by the Investigate Agency, the prosecu tion branch and the trial Magistrate remains one of the island of longs eaters where every one whoa landed hart one and the only one desire that is, to do no more. The petitioners have not moreover been dealt with fairly. Furthermore, it is not believable that as many as four persons should have travelled all the way long from Lahore to Bahawalnagar to cheat the complainant for a paltry amount of Rs. 200.00 only. If they had to do this much, they could cheat someone in Lahore or elsewhere near about. In the circumstances, I am more inclined to believe the version put forth by the petitioner. Their case is that petitioner No. 1 needed some furniture at Bahawalnagar for which purpose he placed order with Muhammad Ismail of Haroonabad who demanded Rs. 500.00 but since the furniture supplied by him was not of the required standard, petitioner No. 1 paid him only Rs. 300.00 and the balance was to be payable if the award by the arbitrators, appointed by the parties, went in favour of the complainant, Muhammad Ismail. It was further averred that Muhammad Ismail had some relations with the Station House Officer of Police Station, Saddar, Bahawalnagar and in collusion with him he lodged false report against petitioner No. 1 and his servants under section 420, P. P. C. and got them arrested at Bahawalnagar. These facts show that the complainant was guilty of not performing his part of the contract in the manner in which he promised to do. The criminal proceedings initiated by him were, therefore, clearly an abuse of the process of the Court inasmuch as the same were launched in order to harass and humiliate the petitioners. The liability, if any would be purely of a civil nature and the criminal proceedings initiated by the complainant instead of promoting the ends of justice are a perversion of the purpose of the law.

6. In the view of the matter I take, I am firmly of the opinion that the lodging of the F. I. R. in this case was not in good faith and the petitioners have been subjected to injustice which calls for prompt redress. This petition, therefore, must succeed. Accordingly. I would accept the petition and quash the proceedings in the case against the petitioners. Proceedings quashed.