1977 P Cr (PLP)

Imam Ali Kazi for Applicants. Abdul Sattar Shaikh, Asstt. A. G. for the State. Mr. Shaikh supports the contention of the applicants and concedes that the order passed by the learned S. D. M., Liaquatabad on 20‑10‑1975 may be set aside arid the criminal proceedings pending against the applicants before the said Court may be quashed. The main contention of the learned counsel for the applicants is that the facts mentioned in the F. I. R. lodged by Inspector Police Shan Muhammad Khan do not disclose any criminal offence and that the dispute between the parties was of a civil nature. He alleges that the F. I. R. was registered due to the mala fides of Inspector Shan Muhammad Khan who had in fact compelled the S. H. O. Soldier Bazar to register the case. He further adds that the criminal proceedings started by Police against the applicants and the cognizance taken by the S. D. M., Liaquatabad was abuse of process of law with the sole purpose of humiliating and insulting rue applicants and forcing them to return the alleged advance amount of Rs. 12,500 to Ghulam Mustafa. The learned counsel for the applicants has relied on authority reported in 1971 p Cr. L J

943. The brief facts are that the applicants, who are brother anal sister, agreed to sell a plot belonging to applicant No. 2, Mst. Aziz Nigar to one Ghulam Mustafa for a total consideration of Rs. 50,000 on 3‑1‑1974. The purchaser allegedly paid them Rs. 12,500 as advance. The sale was to be completed, within 30 days. On account of certain impediments created by the Income‑tax Authorities, the sale deed could not be executed by the applicants for more than three months. The purchaser therefore gave them notice on 5‑4‑1974 alleging that they had committed default in execution of the sale deed and they were therefore liable to pay a penalty of Rs. 12,500 to him as per terms of the agreement. Applicant No. 1 on receiving this notice made a reply to the purchaser. On 20‑11‑1974 the criminal case for offence under section 420/34, P. P. C. was registered against both the petitioners on the letter of Inspector Shan Muhammad Khan of C. I. A., Karachi. After usual inve6tigations they were sent up before the learned S. D. M., Liaquatabad. The petitioners made an application to the Court for their discharge under section 53(1),‑ Cr. P. C. on the ground that the case was of civil nature and due to will of police but their application was rejected on 20‑10‑1975 on the ground that witnesses were not examined and the application a as premature. The contents of the F. I. R. lodged against the applicants consists‑'of the letter written by Inspector Shan Muhammad Khan addressed to S. H. O Soldier Bazar, Karachi. It shows that the petitioners bad induced Ghulam Mustafa to enter into an agreement with them and bad thereby obtained Rs. 12,500 from him and thereafter disowned the agreement and denied the payment. These facts indicate that on the face of the complaint the dispute between the parties was of a civil mature. The applicants have faced prosecution for 2 years but no witness wag yet examined. For the purpose of discharge of the accused persons (petitioners) under section 253(2), Cr. P. C. it was not necessary to record any evidence if no criminal offence was made out by the complaint itself. It appears that the learned Magistrate did not apply his mind to the contents of the F. T. R. before passing the impugned order. The dispute between the parties is of a civil nature and they must approach the proper forum. The Advocate for the petitioners states that a civil suit is actually pending between the parties. I therefore, allow the application and quash the criminal proceedings against the petitioners under section 420/34, P. P. C. pending in the Court off learned S. D. M., Liaquatabad, Karachi. Proceedings quashed.