P L D M3 Lahore 416 (PLP)

This is a petition for quashment of case F.I.R No. 75/91, dated 21-8-1991, P.S. Akbari Gate, Lahore under sections 406, 420 P.P.C. registered on the report of Mst. Akhtar Hafeez against Mst. Shabana Choudhary and her husband Shahid Choudhary and others.

2. According to Mst. Akhtar Hafeez complainant she and her husband Muhammad Hafeez had been residing in Dubai and used to frequently visi Pakistan. She intended to start some business in Pakistan. She knew Dr. Shahid Choudhary, Proprietor, Sidra Travelling Agency, because she used to get tickets for Dubai from him. He induced her to join him in business promising that he would give a profit of Rs. 10,000 to her on the sale of each photosta machine. Consequently, in the month of February, 1988 she gave Rs. 5,00,000 to Dr. Shahid Choudhary. The latter persuaded her husband to invest money in his Travelling Agency on the assurance of paying handsome profit. Accepting the offer, her husband paid Rs.5 lacs to Dr. Shahid Choudhary. According to, Mst. Akhtar Hafeez, she gave a further amount of Rs. one lac to Dr. Shahid Choudhary, on interest. After some time, Dr. Shahid Choudhary again approached him for lending more money to him for the purchase of a car for the Travelling Agency. Consequently, she gave an additional sum of Rs.6,27,000 to him but she later learnt that Dr. Shahid Choudhary had not purchased any car. She further alleged that Dr. Shahid Choudhary had entered into a bargain with her husband for the purchase of a Honda car for Rs.3,40,000 bmt paid Rs. one lac only and did not pay the balance amount. She further alleged that Dr. Shahid Choudhary h ad committed fraud with some other persons also in arranging Visas for them. According to her, Dr. Shahid Choudhary and his accomplices had fraudulently received Rs.57 lacs from them ,on' different occasions. According to Mst. Hafeez Akhtar complainant, Naheed Kauser sister of Shahid Choudhary and his wife Shabana Choudhary had also. been fraudulently receiving money from her on several occasions for investment in the Travelling Agency and purchase of vehicles which were misappropriated by them.

3. Quashment of the case is sought on the grounds that the registration of the case against the petitioner and her husband is mala fide. The allegation levelled in the F.I.R did not fall within the competence of the local police but the F.I.A. had already, investigated into the matter and found the allegations to be false and fabricated. It is stated that previously criminal case on the same allegations involving the same amount was got registered at other police stations and on failing to get any relief from there, the case was got registered at P.S. Akbari Gate, Lahore showing her residence in that area and added in the list of the accused, the womenfolk of the family of Dr. Shahid Choudhary. Mst. Akhtar Hafeez had also made a complaint to the Ombudsman but later did not press it on the ground that she wanted to approach the Civil Court.

4. Learned AA.-G. and counsel for Mst. Akhtar Hafeez had contested the application mainly on the ground that Mst. Shabana Choudhary being an absconder in the case could not seek its quashment. In order to meet this objection, learned counsel for Mst. Shabana Choudhary undertook that she would put in appearance before the Court. Consequently, Mst. Shabaw Choudhary appeared and surrendered herself before the Court (Civil Misc No. 571/93). 1

5. Mst. Akhtar Hafeez had submitted an application to the Interior Minister, Government of Pakistan in November, 1989 for the registration of case against Dr. Shahid Choudhary and Azhar Choudhary, Managing Director and partner of Sidra Travelling Agency for fraudulently extorting Rs.57 lacs from her on one pretext or the other. In the said application she submitted that .the amount in question was obtained by M/s. Dr. Shahid Choudhary and his brother Azhar Choudhary. In that application, there is no mention at all of Shabana Choudhary or any female member of the family of. Dr. Shahid thoudhary. On 14-3-1989 Dr. Shahid Choudhary and Muhammad Hafeez, husband of the complainant entered into the agreement in the presence of Assistant Director, FIA, whereby it was agreed that the amount of Rs.6,70,000 shall be cleared by Dr. Shahid Choudhary on or before 30th April, 1989. This agreement was also signed by Sh. Muhammad Younis, Advocate, Lahore as well as Dr. Shahid Choudhary and Muhammad Hafeez. An lqrarnama was also executed on 13-5-1989 between Muhammad Tariq and Muhammad Hafeez in favour of Dr. Shahid Choudhary that Dr. Shahid Choudhary had made a complete settlement of the accounts and hence they wanted that the inquiry by the F.I.A. be dropped. Later both the parties made the following statement: Inquiry No. 41/89 of A.C. Wing, Lahore. "The matter has been resolved according to the 'agreement made between M/s. Shahid Choudhary, Muhammad Hafeez etc. dated 28-12-1988 on receipt of outstanding amount in total. Agreement dated 28-4-1989 stands cancelled with the . ..of both the Parties. Dated 13-5-1989. ,

6. It would not be out of place to reproduce the report of Ali Qaswar Bokhary, Assistant Director FIA, Lahore who had enquired into the allegations levelled by Mst. Akhtar Hafeez against Dr. Shahid Choudhary: SUMMARY OF THE COMPLAINT The instant matter emanated from a complaint submitted by the above mentioned complainant to the effect that M/s. Shahid Choudhary and other Choudhary have fraudulently extorted Rs. 57 lacs from them on one pretext or the other. The complainant also gave the details of different properties, for which the payment is alleged to have been extorted, including purchase of Travel Agency, Stock of Air Tickets, purchase of vehicles. FINDINGS The matter has been taken up accordingly. During the course of inquiry it revealed that an lqrarNama dated 28-12-1988 is on record which was effected between Shahid Choudhary and complainant Muhammad Hafeez Tariq etc. According to this lqrar Nama, it was decided that a total amount of Rs.8 lacs and 70 thousands only is against Shahid Choudhary. Furthermore it was decided that with effect from 28-12-1988 no other payment whatsoever is to be paid by Shahid Choudhary. The payment of Rs.8,70,000 was decided to be made through three Cheques Nos. 67873197, the sum of Rs.2 lacs dated 25-2-1989, Cheque No. 67869732 the sum of Rs. 8,70,000 and Cheque No.67869730 dated 25-6-1988 in the sum of Rs. 4 lacs respectively. Despite the fact that the matter was enquired, proved to be a case of civil nature, and no cheating on the part of Shahid Choudhary came forward because the complainant failed to justify the amount of Rs.57 lacs mentioned in their complaint. They had already entered into an agreement with Shahid Choudhary before the submission of the complaint to the Minister of Interior that only Rs.8,70,000 stands against Mr. Shahid Choudhary. However, keeping in view the instructions of the Minister of Interior, both the parties were called and issue has been resolved in the below mentioned fashion: (1) A sum of Rs. 2 lacs was cleared by Mr. Shahid Ch~uidhary on 14-3 1989 in lieu of Cheque No. 67869731.

2. Remaining amount of Rs.6,70,000 was cleared on 13-5-19W, under proper receipts, signed by both the parties acknowledging the facts mentioned therein. Under the circumstances when the matter stands settled, no action by the Agency is warranted. 1, therefore, recommend closure of the matter. Submitted for orders."

7. Learned counsel for the petitioner has also referred to letter No DCZ/AC/Wing/31/89/4675 dated 20:-5-1989 written by Oamar Uddin Khan, Director to the Directorate General, FIA, Islamabad. In the said letter Qamar Uddin Khan stated that Mr, Ali Qaswar Bokhary, Assistant Director, FIA, had made a thorough probe into the matter and concluded that the matter was of a civil nature and no cheating on the part of Shahid Choudhary was detected because the complainant failed to justify the amount of Rs. 57 lacs mentioned in their complaint. According to him, the outstanding amount of Rs.8,70,000 had been paid by Mr. Shahid Choudhary to the complainant and in view of the ,settlement no action was called for. The matter was also enquired into by Mr Saddique Khalid, Assistant Director, FIA, Anti-Corruption Wing who vide his report dated 20-6-1989 opined that from the enquiry conducted it was proved that the matter was of civil nature and no cheating on the part of Dr. Shahid Choudhary had come on record. As already stated above, Mrs. Akhtar Hafeez withdrew her complaint on the above allegations on the ground that she wanted to approach the Civil Court.

8. On 7-6-1991 Mrs. Akhtar Hafeez showing her residence as 325 Raza Block, Allama Iqbal Town, Lahore submitted application to P.S. Allama Iqbal Town, Lahore alleging that Dr. Shahid Choudhary had fraudulently received Rs.57 lacs from her and her husband. In the said complaint no mention at all was made of Shabana Choudhary or any other female member of the family of Dr. Shahid Choudhary but in the case got registered by her at P.S. Akbari Gate on 21-8-1991 Shabana Choudhary and Naheed Kausar were also roped in with the allegation that they had also received Rs.16 lacs from her for investment in the Travelling Agency. Learned counsel for the complainant submits that since the challan against the petitioner has been submitted in the Court of Ilaqa. Magistrate, Lahore she should apply to the trial Court under section 249-A, Cr.P.C.

9. Although it would have been more appropriate if the petitioner had approached the trial Court in the first instance but there is nothing to bar this Court from entertaining the application under sections 561-A, Cr.P.C. directly. I am fortified in my view by a judgment of the Supreme Court titled Mian Munir Ahmad v. The State 1985 SCMR

257. In the said case it was held that the powers of the trial Court under sections 249-A, Cr.P.C. and 265-K, Cr.P.C. were co-extensive with similar powers of the High Court under section 561-A, Cr.P.C. and both could be resorted to.

10. The allegations levelled in the case against the petitioner and other accused are vague, in that, no specific dates are mentioned on which money was paid to them. No receipt or writing was obtained from them in token of having received the amount in question. In the column of date and time of occurrence only mentioned. No witnesses are mentioned in - the F.I.R. in whose presence the money was advanced to the petitioner or her husband. In the earlier * complaints there was no mention of Shabana Choudhary petitioner as recipient of the amount. The matter was enquired into by F.I.A. and the allegations levelled by the petitioner were found to be false and fabricated. The lqrar Nama executed between the parties shows that the disputed amount was far less than Rs.57 lacs as mentioned in the F.I.R.

11. It is well settled that this Court is not denuded of its powers to quash the proceedings if it is satisfied from the material produced before it that the prosecution has been launched for improper motive, merely to harass the accused, or that its continuance would be an abuse of the process of the Court or for other reasons which impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue.

12. The allegations levelled by Mst. Akhtar Hafeez respondent prim facie show that the dispute between the parties is of a civil nature for Which appropriate remedy would be to approach the Civil Court.

13. Resultantly, the petition is allowed and the proceedings arising out of I case F.I.R. No. 75/91 dated 21-8-1991 P.S. Akbari Gate, Lahore are quashed. However, it will be open to the complainant to seek her remedy against the petitioner and other accused before the appropriate Civil Court. N.H.Q./S-285/L Proceedings quashed