P D 1994 Karachi 363 (PLP)

Applicants Khurshid Ahmad and Nasir Ali, who are accused in Crime No.16/93 under sections 406/506‑B, P.P.C. registered at P.S. Aram Bagh, Karachi (South), a challan of which is submitted in the Court of S.D.M., Aram Bagh, Karachi South, seek the quashment of the said proceedings. It would be pertinent to give the facts of the case forming a background of this application. The respondent No.4 Riazat Khan addressed an application to S.D.P.O. Aram Bagh Sub‑Division, Karachi, on 20‑1‑1993 and stated that while he was in France, he had paid a sum of 2,25,000 French Francs to one Major General (Retd.) B.M. Mustafa Khan, who was in France at the relevant time. It was stated that the said B.M. Mustafa was a partner in the Firm ACE Marketing Agencies Ltd., Karachi, of which, applicants Khurshid Ahmad and Nasir Ali were the partners. B.M. Mustafa died in France in the year 1987 and his dead body was brought for burial to Pakistan. Respondent No.4 further stated that during those days, he contacted the applicants in Pakistan and informed them about borrowings made by B.M. Mustafa, which according to him, were invested in applicants' said firm. The respondent also stated that he was kept on false promises but finally, on 20‑1‑1993, when he alongwith his brother went to the office of the applicants to repeat. his demand for payment of money, applicants not only refused to return the amount but also threatened that if they came again to the office of the applicants they would be murdered. The application of respondent No.4 was forwarded to Aram Bagb Police where F.I.R. No.16/93 was registered and thereafter, as pointed, the respondent No.4 managed with the police to have the applicants arrested from their office, taken to Aram Bagh Police Station where they were detained for quite some time and were released on an assurance that they would pay the amount of Rs.5,00,000 the next day. Because the harassment by police at the instance of respondent No.4 continued, the applicants filed C.P. No.D‑191/93 and notice was issued to D.S.P. Aram Bagh and S.H.O., Aram Bagh and on their having disclosed that F.I.R. is filed against the applicants, the petition was withdrawn and was disposed of as such. Applicants have challenged proceedings against them through this application. I have heard the learned counsel‑ for the applicants, the AA.‑G. and the respondent No.4 Riazat Khan/complainant. It has been argued by applicants' learned Advocate that B.M. Mustafa was not a partner of the applicants in A.C.E. Marketing Agencies Ltd. and had not invested any amount in their business. The respondent No.4 had some information that late B.M. Mustafa was on visiting terms with the applicants during his lifetime and on an assumption that the money borrowed by him from the respondent No.4 was invested in the applicants' firm, made demand for the repayment of the amount. According to the learned Advocate, applicants had in clear terms intimated the respondent No.4 that no amount. was either borrowed by applicants from B.M. Mustafa nor paid by the deceased towards some sort of investment in applicants' business. The contention of the learned Advocate further is that the respondent No.4, in order to recover his dues which he advanced to B.M. Mustafa, lodged a malicious prosecution against the applicant, which amounts to causing unnecessary harassment and the proceedings, in these circumstances need to be quashed. The learned Advocate was required to satisfy if without seeking acquittal of applicants under section 249‑A of Cr.P.C quashment application under section 561‑A could be filed directly. Mrs. Navin S. Merchant has referred to the case of (i) Asif Ali Zardari v. The State and another (1992 PCrXJ 58), (ii) Muhammad Adam and 2 other v. The State and another' (1993 PCr.LJ 504), (iii) Ishtiaq v. Vakeel Ahmad and another (1991 PCr.LJ 739), and (iv) Muhammad Nasim Khan v. Fida Muhammad Khan (1993 PCr.1J 1795), and argued that in appropriate cases application under section 561‑A, Cr.P.C. can be filed directly before this Court without seeking acquittal under section 249‑A of Cr.P.C. It is lastly contended that from the contents of the application no offence under section 406 is made out as the respondent No.4 failed to show an admitted fact that he made any entrustment of the amount to the applicant. It is further argued by the learned Advocate that if late B.M. Mustafa had borrowed any amount from respondent No.4 the same could be recovered through a civil suit from either the legal heirs of the deceased or from the estate left by the deceased but no criminal case could be filed against applicants to pressures them for payment of amount which they never received either from late B.M. Mustafa or the respondent No.4. Mr. M. Sarwar Khan, AA.‑G. has opposed this application and ha. argued that although F.I.R. was registered under sections 406‑502, P.P.C. the challan is submitted only under section 506, P.P.C. and because applicants had criminally intimidated the respondent No.4 and had extended threats o1 murder, the F.I.R. was rightly registered and on investigation the challan put up before the trial Court. The learned AA.‑G. argued that a prima facie case was made out against the applicants and in such circumstances no quashment application under section 561‑A of Cr.P.C. would be maintained. The learned AA.‑G. has referred to the case of (i) Ameerzada and another v. The State (1973 PCr.LJ 211), (ii) Rehmat Masih v. The State and another (1978 PCr.IJ 651), (iii) Shamsul Qamar alias Sepoy v. The State (1984 PCr.LJ 504) and (iv) Jafar Khan v. The State (1980 PCr.LJ 410). The respondent No.4 has also been heard and he was asked to state if any amount was paid by him to the applicants when he replied that late B.M. Mustafa had taken loan from him and to his knowledge such amount was invested by B.M. Mustafa in the business being run by the applicants, the respondent No.4 also stated that for quite some time applicants were making promises to pay the amount to him but subsequently backed out and when he insisted to make payment they extended threats of murder. . I have gone through the record and considered the contentions raised on behalf of the parties. It is an admitted fact that respondent No.4 paid no amount to the applicants. On his own showing he paid a substantial amount to late B.M. Mustafa in French Currency and he was informed by late B.M. Mustafa that the amount was being invested by him in the business of applicants. Applicants as such were not liable to pay any amount to the respondent No.4. From the fact's of the case it seems, that because B.M. Mustafa was on visiting terms with applicants and had given‑ some impression to the respondent No.4 that he had invested money in the business of applicants, the respondent No.4 pressurised them for the repayment of the amount. The respondent No.4 seems to have had contacts with S.D.P.O. Of Aram Bagh and through him managed to have F.I.R. registered against the applicants for breach of trust and criminal intimidation. Breach of trust was not established during investigation and, therefore challan was submitted only under section

506. To me it is clear, that the filing of the report, arrest of applicants and their being dragged before criminal Court were all pressure tactics intended to coerce the applicants to meet the illegal demand of the respondent No.4. There is no evidence whatsoever that applicants extended threats of murder to the respondent No.4 and the case as set up cannot end in conviction. The powers of this Court under section 561‑A are co extensive with the powers of the trial Court under section 249‑A or 265‑K of Cr.P.C. As a result of the above discussion I am of the considered opinion that continuance of proceedings against the applicants would be an abuse of the process of Court and the same are hereby quashed. The applicants who are on bail , are discharged of the bail bonds. This shall be without prejudice to the. Respondent No.4, who may if advised, seek appropriate remedy through a, competent Court of law to recover the amount advanced to late B.M. Mustafa. N.H.Q./K‑358 Proceedings quashed.