1984 P Cr (PLP)

This application under section 561-A, Code of Criminal Procedure (V of 1898), seeks the quashment of criminal proceedings under section 406/420, Pakistan Penal Code (XLV of 1860) pending against the petitioner in the Court of Mr. Abdur Rauf Khan, Magistrate First Class, Lahore Cantt. vide F. I. R. No. 227, dated 8th October, 1981 registered with Police Station Cantt. Lahore.

2. It is alleged in the F. I. R. that the petitioner alongwith his twos uncles defrauded the complainant-respondent No. 2 herein by fraudlently taking an amount of Rs. 1,22,000 with a promise to send the workers to Saudi Arabia on the basis of a letter of demand of labour. The workers were never sent abroad and it transpired that the petitioner was neither an authorised recruiting agent nor he possessed the genuine demand. It is also alleged that the petitioner later promised to pay back the amount through a written agreement but never honoured hi undertaking.

3. Learned counsel for the petitioner contended that the transaction was basically of a civil nature and that in the presence of a civil suit on the came subject-matter wherein the petitioner has prayed for cancellation of the agreement dated 4th January, 1978 on the ground of having been procured by respondent No. 2 by coercion and misusing his official position, the criminal proceedings should be quashed. It is next contended that the criminal proceedings initiated by respondent No. 2 were mala fide, inasmuch as, the case was registered for black-mailing the petitioner in respect of civil litigation. In this connection leaned counsel submitted that respondent No. 2 earlier approached the Deputy inspector. General of Police, Lahore, on the same allegations. His application was forwarded to the Station House Officer, Gawalmandi, Lahore, who after conducting an enquiry submitted a report to the higher officers that civil litigation was going on between the parties in respect of the same agreement and, therefore, no offence appears to have been committed. Accordingly, this application was filed. Notwithstanding this, respondent No. 2 manoeuvred to get a case registered against the petitioner at the intervention of the Martial Law Authorities under section 406/420, Pakistan Penal Code and M. L. O.

86. The petitioner made a representa tion to the Deputy Martial Law Administrator stating therein the alleged mala fide of the petitioner. In consequence, the case was remanded for trial by an ordinary criminal Court. It is next submitted that respondent No. 2 never took up the defence in his written statement as set out m the F. I. R. The case set up in the civil dispute is at variance with the allegations levelled in the F. I. R. and, therefore, it is evident on the basis of material on record that the prosecution launched against the petitioner is mala fide. Learned counsel for the petitioner relied on Mst. Kamila Khatoon v. The State (1982 P Cr. L J 1035), Mst. Hasina Bano v. The Slate (1983 P Cr. L J 132) and Mirza Naseem Baig v. Muhammad Iqbal (1981 S C M R 315).

4. Syed Niaz Ali Shah, learned counsel for respondent No. 2 submitted that it is not a fit stage for the quashment of the proceedings as the petitioner has only been summoned by the Magistrate and no proceedings have yet been taken. He further submitted that the dispute raised in the criminal proceedings is not of a civil but of a penal nature. This matter is to be decided independently and not on the basis of defence taken by the respondent in his written statement, inasmuch as, in a civil case the plaintiff is to prove his own case irrespective of the defence taken by the defendant. Reliance was placed on Khurshid Ahmad v. The State (1983 P Cr. L J 1530), Rashid Ahmad Gardee v. The Sate (1983 P Cr. L J 2222), Gul Muhammad v. The State (1983 P Cr. L J 2317), Mst. Syeda Banoo v. Muhammad Saleem (1983 P Cr. L J 2349), Muhammad Hayat v. The State (1983 P Cr. L J 619) and Muhammad Shafi v. The State (1981 S C M R 237).

5. Having gone through the authorities cited at the bar, I am inclined to hold that the precedents relied upon by the learned counsel for the peti tioner are not attracted to the facts of the present case. The observations in Mirza Naseem Baig's case strongly relied upon by the learned counsel for the petitioner enunciate the principle that this Court should examine the complaint/F. I. R. as to whether it makes out an offence and in doing this exercise it should not be influenced by the extraneous material which is not germane to the issue. It was further observed that this Court is not denuded of its powers; to quash the proceedings if it is satisfied from other cogent material that the prosecution was launched for improper motives, merely to harass the accused or that its continuance would be an abuse of the process of the Court or for other reasons which impell the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue. .

6. Let me now turn' to examine the merits of this case in the light of the ratio laid down in Mirza Naseem Baig's case. The contention of the petitioner that the question as to whether or not the agreement dated 4th January, 1978 was executed under coercion of under influence is being adjudicated upon in the civil Court, the criminal proceedings with a respect to the same subject-matter are ex facie mala fide has no force. Suffice it to say that there is no bar in law to simultaneously initiate civil and criminal actions. Respondent No. 2 who was allegedly defrauded has two-fold remedies for the redress of his grievance. First, through criminal proceedings, and secondly, through a civil suit. Each proceeding is independent of the other and is intended for a separate purpose. Respondent No. 2, however, did not file any civil suit to recover the alleged defrauded amount but invoked the machinery of criminal law for getting the petitioner punished. Furthermore, the case set out in the F. I. R. is not based on the said agreement simpliciter but on the allega tion that respondent No. 2 has been defrauded. The F. I. R. prima facie discloses a case against the petitioner, therefore, the prosecution cannot be stiffled by quashment simply on the basis of the stand taken by respondent No. 2 in the written statement in the civil suit. This is a question which essentially relates to the merits and I would, therefore, refrain from expressing any opinion thereon so as not to prejudice the trial Court regarding respective contentions of the parties. Additionally, the petitioner has merely been summoned by the trial Court. Neither his evidence nor his statement under section 342, Code of Criminal Procedure, has been recorded and, therefore, this Court cannot sit in judgment to quash the proceedings at this premature stage. The power conferred on this Court under section 561-A, Code of Criminal Procedure, cannot be invoked to obstruct or divert the ordinary course of criminal procedure. However, if in the course of evidence recorded during the proceedings it transpires that the matter raises a question of civil liability simpliciter and the proceedings before the criminal Court are abuse of the process of Court, the petitioner shall be at liberty to approach to trial Court afresh for the quashment of the proceedings under section 249-A, Code of Criminal Procedure. In view of the above, I find no merit in the application and the same is hereby dismissed. M. A. K Application dismissed.