1991 P Cr (PLP)

(iii) Margoob Alam and another v. Shamsuddin and another 1986 S C M R 303 wherein it was held that powers under section 561-A, Cr.P.C. are meant to prevent abuse of the process of the Court and not to stifle the prosecution. The facts of the case are not mentioned in the report but however, the learned Judges maintained the order of the High Court refusing to quash the proceedings as the High Court was of the view that the facts alleged in the complaint prima facie disclosed commission of criminal offence. It was in the above background that the contention of the petitioner that the respondent having also initiated proceedings by way of a civil suit, the criminal proceedings initiated by him amounted to abuse of the process of the Court, was repelled. (iv) Ikramullah v. Muhammad Yousuf 1984 P Cr. L J 350 wherein the Lahore High Court refused to quash the proceedings for the reason that the story of the complainant was not implausible and unless some evidence was recorded, the complaint could not be said to be baseless. (v) Manzoor and another v. The State 1982 P Cr. L J

261. The learned Judge was of the view that the F.I.R. disclosed prima facie case under sections 403 and 342 read with section 34, P.P.C. against the applicants who had come for quashment of the proceedings, and therefore, expressed the view that without recording some evidence the contention raised by the applicants that the dispute was of civil nature cannot be considered for the quashment of the proceedings although the suit was pending in respect of the same dispute. (vi) Ishtiaq Hussain v. Abdul Qadeer 1982 P Cr. L J

463. In this case, the applicant had issued a cheque to the respondent, which was on account of refund of amount paid by him to the applicant for the purchase of certain goods, which were not delivered. The cheque was dishonoured by the Bank, which compelled the respondent to file criminal case. The quashment of the proceedings was sought on the plea that the amount was not paid to the accused as sale consideration but as security deposit for supply of the goods. On that basis it was contended that there was no element of mens rea on the part of the petitioner and. the dispute was of civil nature. The High Court was of the view that the complaint disclosed a prima facie case and also the view was expressed that the extraordinary powers of this Court under section 561-A, Cr.P.C. should not be an instrument in the hands of the accused to short-circuit the prosecution. (vii) Nazimuddin v. The State 1982 P Cr. L J

105. In this case, the applicant was facing charge under sections 302, 34, 43ti and 220, P.P.C. It was noted by the learned Single Judge of this Court that the proceedings cannot be quashed under section 561-A, Cr.P.C. as the appraisal of the evidence could best be done only by the trial Court. (viii) Ali Asghar v. The State 1982 P Cr. L J

24. The application filed under section 561-A, Cr.P.C. was dismissed by a learned Single Judge of the Lahore High Court and the applicant was directed to appear before the trial Court and explain his position both on factual and legal plane. Neither the facts of the case nor any law has been referred to in this report. (ix) Khushi Muhammad and 4 others v. The State 1979 S C M R 94 In this case, the petitioners approached the Supreme Court with a request to set aside the order passed by the High Court refusing quashment of the proceedings on the ground that after passing of the order by the High Court, evidence was recorded by the trial Court and there was no likelihood of conviction on the basis of the said evidence. The Supreme Court refused to interfere in the order passed by the High Court as the evidence recorded subsequently was not before the High Court at the time when the order impugned before the Supreme Court was passed, and therefore, it could not be said that the order passed by the High Court was erroneous. It was under these peculiar circumstances that the petitioner was directed to approach the trial Court under section 249-A, Cr.P.C. (x) Ghulam Muhammad v. Muzammal Khan and others P L D 1967 SC 317 wherein their Lordships observed that:-- "The argument that the inherent jurisdiction under section 561-A of the Code of Criminal Procedure is not necessarily excluded, because a revision is also possible, cannot be accepted as a general principle. These power are as much controlled by principles and precedents as are its express statutory powers:" It was further observed:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence:" (xiv) Fazal Karim v. The State P L D 1976 SC

461. In this case the Supreme Court observed as under:-- "It is well-settled that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course of criminal procedure." The learned Advocate for the applicant in reply to the submissions of the learned counsel for respondent No.l, has placed reliance on the following cases on the proposition that the powers of the trial Court under section 249-A, Cr.P.C. and the High Court under section 561-A, Cr.P.C. are co-extensive. (i) Mian Munir Ahmed v. The State 1985 S C M R 257 wherein their Lordships have observed as under:-- "The powers of the trial Court under section 249-A, Cr.P.C. and section 265-K, Cr.P.C. are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. and both can be resorted to. It would of course be proper to approach the trial Court in the first instance, but there is nothing to bar the High Court from entertaining in an appropriate case, an application under section 561-A, Cr.P.C. directly." (ii) Ghulam Ali v. Javaid and another 1989 P Cr. L J 507 wherein a learned Judge of this Court relying on the case of Mian Munir Ahmed (Supra) followed the view that there was no bar in moving the High Court under section 561-A, Cr.P.C. without approaching-the trial Court under section 249-A, Cr.P.C. as the powers of the trial Court under section 249-A, Cr.P.C. and the powers of this Court under section 561-A, Cr.P.C. are co-extensive. In this case, it was found by the learned Judge that the dispute between the parties was of civil nature and the criminal case under sections 406/420 and 506, P.P.C. was filed to harass the applicant and the proceedings were quashed. In the above case, the Supreme Court referred to the previous case-law including that of Khushi Muhammad and others (Supra) and also analysed the provisions of sections 249-A, 265-K and 561-A, Cr.P.C. for reaching the aforesaid conclusion. (iii) Muhammad Urs v. The State 1990 M L D 1583 wherein similar view was expressed with regard to the powers of the trial Court and the High Court being co-extensive under the aforesaid two sections. The learned Judge for the above view placed reliance, in addition to the case of Mian Muneer Ahmed (Supra), on the cases of Tufail and others v. The State and another 1986 P Cr. L J 2749, M.S. Khawaja v. The State P L D 1965 SC 287 and Chaudhry Muhammad Ashraf v. The State 1990 P Cr. L J

347. Following principles can be concluded from the case-law cited by the learned Advocates for the parties with regard to the exercise of the powers by the trial Court under sections 249-A and 265-K and the High Court under section 561-A:-- (i) Mere pendency of a civil suit, does not absolve a party from a criminal charge if the facts of the case established the same but if the facts of the case do not disclose mens rea or commission of criminal offence, the criminal proceedings will be an abuse of the process of the Court and cannot be allowed to be used as an instrument of harassment or coercion for attainment of unlawful purpose. (ii) The power to quash the criminal proceedings cannot be exercised where the case set up by the complainant prima facie shows a plausible case, unless some evidence is recorded to establish that the dispute is of a civil nature or where the appraisement of the evidence by the trial Court is desirable in the first instance looking at the facts and circumstances of the cane. (iii) The exercise of jurisdiction by the High Court under section 561-A is controlled by the principles and precedents as much as by express statutory powers. (iv) The powers under section 561-A cannot be exercised to stifle the proceedings where prima facie case is disclosed but there is no bar in exercise of such powers when the charge on its face does not disclose any offence. (v) The powers of the High Court under section 561-A, Cr.P.C., and those of the trial Court under sections 249-A and 265-K, Cr.P.C. are co-extensive. In view of the above, it is to be first determined whether the facts alleged in the F.I.R. disclose commission of any criminal offence or mens rea on the part of the applicant and whether the dispute between the parties is purely of a civil nature or whether the criminal proceedings have been initiated with mala fide intentions to coerce the applicant to withdraw the civil suit filed by him against respondent No.l and others. The scrutiny of the F.I.R. in this case discloses that on part payment of the sale consideration, the applicant delivered the possession of the property in question to respondent No.l. According to the applicant, the owner of the property revoked the power of attorney on 10-11-1990. The fact of revocation has not been controverted by the learned counsel of respondent No.l. The allegations made in the F.I.R. do not disclose that the applicant had induced respondent No.l to make the part payment of the sale consideration, with no intention from the very outset to deliver the property or execute the sale-deed. Such are the basic ingredients of offence of cheating under section 420, P.P.C. The facts of this case on the contrary, demonstrate that it is the applicant who has suffered the losses because of the conduct on the part of the owner of the property on the one and respondent No.l on the other hand. The applicant had paid the entire sale consideration to the owner in so far as, it was payable to him and the owner executed registered general power of attorney in his favour to enable him to execute the sale-deed and to obtain redemption of the mortgage after payment of the loan to the Corporation or to deal with the property as he may choose. So far as respondent No.l is concerned, his grievance is that the applicant, has not executed sale-deed in his favour in spite of his demands. The applicant was striped off such authority with effect from 10-11-1990. After all, he was an agent, therefore, respondent No.l, ought to have made such a demand from the owner, the principal, on revocation of the power of attorney. Respondent No.l has not pleaded ignorance about the above facts. Under these circumstances, no fraudulent intentions can be attributed to the applicant. The remedy was/is available to respondent No.l by way of suit for specific performance of the contract against the owner. The dispute amongst the parties i.e. the applicant, respondent 1Vo.1, and the owner is purely of civil nature. The rights of respondent No. 1 are already secured to a great extent by virtue of physical possession of the property in dispute being with him. This brings us to section 506, P.P.C. In the F.I.R. the allegation is that the applicant had threatened respondent No.l on his demand for execution of the sale-deed. The above allegation is not conceivable under the circumstances of the case. Applicant has no reason to extend threats. All that can be conceived of is expression of his inability td do so, because of the revocation of the power of attorney by the owner. Even otherwise the F.I.R. is vague in this context, as the nature of the alleged threat and the date, time and place when and where it was given have not been disclosed in the F.I.R. to lead one to infer commission of offence of criminal intimidation for compelling respondent No.l to do, what he is not legally bound to do or omit to do what he is legally entitled to do. The F.I.R. was lodged after about three months of the institution of the suit. It, therefore, stands to reason that the F.I.R. was lodged by respondent No.l to coerce the applicant to withdraw the above suit. The said proceedings are intended to be used as vehicle of oppression and coercion against the applicant and amount to abuse of the process of Court. The application is, therefore, allowed and the proceedings pending before First Class Magistrate, Naushero Feroze, are hereby quashed. MA.K./M-1448/K Proceedings quashed.