1977 P Cr (PLP)

No further proceedings in the case have, however, taken place thereafter. "The brief facts of the case as stated in the complaint and the recorded, statements are that the applicant had his cotton business under the name `Kohinoor Ginning Factory' at Khadro though his address in the complaint ‑is shown as Aftab Traders opposite Electric Office, Khori Garden, Karachi. The second respondent had same business but at Sinjhoro. In March, 1974, the applicant contacted the second respondent and asked him to supply cotton, which he did accordingly. Subsequent to that there was another transaction, which is described in para. 4 of the complaint as under: ‑ "that subsequently the complainant again entered with another contract of cotton seeds whereby the accused agreed to supply him the goods weighing 1750 maunds Cotton Seeds at the rate of Rs. 35 per maund by 31‑3‑1974. The complainant believing the words of accused person paid him Rs. 60,000 in the presence of Muhammad Ibrahim Sheikh and others." The second respondent waited for the agreed time but he did not receive cotton seeds. He thereafter went to the applicant alongwith Muhammad Ibrahim and others and contacted him at Karachi where the applicant once again promised and gave his full assurance to supply the commodity under the contract, very soon. According to the second respondent, the applicant continued to make false promises, but did not appear serious to supply the consignment, and finally when approached, about a week before the filing of the complaint, to his surprise he issued threats, of involving him in false cases and even to put him to death. In the submission of the learned counsel for the applicant the above facts, as stated, do not make out any of the offences under section 406 or 420 of the P. P. C. The maximum that could be made out of these facts was a transaction of a civil nature, showing a breach of a contract and for which the proper venue was a civil Court and not the criminal Court. Mr. Manzoor Hussain, the learned counsel appearing for the State also supported the case of the applicant, as in his opinion, also, a bare reading of the facts stated in the complaint was enough to show that the ingredients of the offences for which process was issued by the Magistrate, were com pletely missing. The parties admittedly had business dealings before. The transaction of supplying cotton seeds was described as a contract in the very complaint, and there was nothing to disclose that the applicant did not have the idea of fulfilling this contract at the time of the initial agreement. He further pointed out that the two offences of cheating and criminal breach of trust were basically different, and the Magistrate had taken an erroneous view of law in issuing process for both the offences. There could either be an entrustment of property or inducement to obtain property, but not both at the same time. Furthermore, the complaint was not even clear about the place where the transaction had taken place. This was all the more necessary, as in the complaint the address of the applicant was shown as that of Karachi, while he had business at Khadro. He submitted that such type of cases wherein transactions: essentially of a civil nature are converted into a criminal offence, are not uncommon and are in fact instituted with a view to cause harassment to innocent persons. This could be a case of that type as the address of the applicant in the complaint is that of Karachi and the intention may well be to execute the process against him at Karachi, at his usual place of residence. Continuing with such proceedings therefore accord ing to him, would amount to an abuse of the process of law. The learned counsel cited cases reported as P L D 1962 Pesh. 167, P L D 1970 Kar. 446 and 1972 P Cr. L J 724 which fully support his submissions. Mr. Muhammad Ali Chohan, learned counsel appearing for the second respondent, the complainant in the original case, however, contended that to give a finding upon the allegations of facts made in the complaint and the statements recorded by the Magistrate, whether they did or did not disclose a criminal act or an offence under section 420 or 446, P. P. C. was the function of the Magisterial Court and interference with the same at this stage, in exercise of the powers under section 561‑A of the Code was not warranted and would amount to stifling the prosecution. He relied on the following observation made in the case of Muhammad Ehsan v. State (P L D 1968 Lah. 451) at page 457 :‑ "Coming to the last contention that the complaint as framed does not reveal commission of any offence whatever against the petitioner, it may be observed that this is a question to be determined by the trial Court after recording some evidence. If no offence is prima facie made out against the petitioner, this Court has every reason to believe that he shall‑be discharged in accordance with the legal procedure. But in view of P L D 1967 S C 317 there is hardly any ground for quashing the proceedings." In the above case a complaint under section 476 of the Cr. P. C. had been filed by a Civil Judge, Lahore for offences under sections 420, 468, 471 and 109, P. P. C. which had been committed in some proceeding pending before him. A complaint was filed in the Court of a Magistrate whose order was im pugned on the basis of the provisions of section 195, Cr. P. C. and it was con tended that only one of the offences out of those mentioned in the complaint i.e. section 471, P. P. C. was covered by section 476 (1)(c), Cr. P. C. and therefore the complaint with regard to the rest of the offences was incompe tent. Besides this order grounds were also raised including one' that upon the allegations as set out in the complaint no offence was made out against the accused. The learned Single Judge of the High Court who decided the case proceeded first to examine the question of expediency which was a necessary condition for filing such a complaint and came to the conclusion that: ‑ "A perusal of the impugned order clearly indicates that notwithstanding the direction issued in the earlier order that the complaint should be filed under section 419, P. P. C. which was subsequently substituted by the existing sections in the complaint, the learned civil Judge had definitely applied his mind before moving in the matter. In fact with out prejudice to the proceedings in the case it may be observed that from the facts as alleged in the complaint the petitioner practised a fraud on the Court itself besides being instrumental in the filing of a suit through personation. As such it would be correct to say that the complaint was filed merely vindicating the position of a single individual or for the satisfaction of his sense of vengeance." It is in this context that the observations, quoted earlier were made and which, were relied upon by the learned counsel for the applicant. Obviously, the facts of that case were completely different from the facts involved in the case under consideration. In this case the liability of the applicant towards the respondent No. 2 was admittedly contractual. Both being described as businessmen dealing in cotton and a huge amount of Rs. 60,000 having passed as consideration, for the 'alleged contract, it is not possible to think that the liability of the applicant would be difficult to establish. Obviously it would be a case of a breach of contract, for which the proper relief can be obtained in a civil Court. In the case of R. C. P. Guignard v. State and another (P L D 1963 Kar. 868), Khamisani, J., who decided that case, after reviewing the case law observed at page 872 in regard to the exercise of powers under section 561‑A, as under: ‑ "This section can be used by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The High Court generally does not interfere with the case pending in the subordinate Courts and has always desired the cases to be tried there and concluded, but if this rule were to be universally accepted lot of mischief is likely to emanate therefrom. The general tendency on the part of people here is to enforce civil liability by way of resort to a criminal prosecution, which is not permissible under law. It is in these cases where the intention of the party is apparent on the face of the record that the party desires to enforce a civil liability by circumvented Criminal prosecution that the High Court will always interfere. If the High Court does not prevent such misconceived and frivolous litigation it shall be abdicating its function of giving prompt redress to the party aggrieved. The Legislature in its wisdom being conscious of situations of this type had made a provision of it in section 561‑A, Cr. P. C. In my opinion, where a person is enforcing a liability which is entirely civil in nature by resorting to a criminal prosecution, he is doing something which is not warranted by law and if on his complaint any action has been taken and process has been issued it is obviously an abuse of process of Court." This observation fully applies to the facts of the present case. As a result the application is allowed and the proceedings initiated upon the above‑said complaint, pending before the Mukhtiarkar and F. C. M. Sinjhoro against the applicant, are quashed. Proceedings quashed.