1977 P Cr (PLP)

This is a petition under section 561-A, Cr. P. C. for quashing the proceed ings instituted by the police under section 182, P. P. C. against the petitioner in tile Court of S. D. AI., Liaquatabad under the following circumstances.

2. Petitioner Haji Muhammad Ali had joined one Syed Sabir Ahmad, the respondent, in partnership business of poultry farming. The petitioner; had invested about Its. 2,00,000 in that business. It was the case of the petitioner that the respondent contrary to the agreed arrangement had withdrawn amounts from the bank account of the firm under forged signature of the petitioner. The petitioner then sent applications to the Governor, the D.

1. G., Crime Branch etc., alleging the above facts. This written report was forwarded to S. H. O., Model Colony Police Station who registered the case for offence under sections 406, 420 and 506, P. P. C. The case was investigated by the Crime Branch and Sub-Inspector, Crime Branch after due investigation forwarded his report that the signatures on the cheques were genuine and the allegations of the complainant were false The respondent who had been arrested was accordingly released. A final report dated 1-2-1974 was submitted in the Court of S. D. M. on 19-4-1975 which was accepted by the S. D. M. Thereafter the complaint under section 182, P. P. C. was filed by S. I. Zahoor Ali of the Crime Branch it, the Court of S. D. M., Liaquatabad, Karachi. 2-A. Meanwhile petitioner Haji Muhammad Ali filed a direct complaint for offences under sections 406, 420, 468, 471 and 506, P. P. C; against the petitioner, his wife and one Shamsuddin Ahmed on 31-5-1975 in Court Of A. D. M. Malir, Karachi. It was forwarded to S. D. M., Malir on 5-4-1975. The learned S. D. NY. Recorded the statements of the witnesses produced by the complainant. Meanwhile a report was received from the Crime Branch that no case had been made out against the accused. The S. D. M. however registered the complaint and issued process for offence under section 468, P. P. C. on 26-5-1975.

3. It has been argued by Mr. Hazratjee on behalf of the petitioner that the original application was made to the Governor of Sind and lie hat: forwarded the application to the D. I. G. That since the Governor was not a public servant the provisions of section 182, P. P. C. could not be made applicable to this case. The police had changed that the police had no doubt registered the F. I. R. but it was not under signature of the petitioner and the offence complained of. The main argument of Mr. Hazratjee is that in view of the direct complaint still pending in the Court of S. D. M. ii: respect of the same allegations it cannot be said that the allegations made in the applications were false or malicious. It has, on the other hand been argued by Mr. Warasat Hussain Khan that the police had submitted a final report Which had been accepted by the S. D. M. on 19-2-75. That the direct complaint for offence under section 182 had been filed on 24-6-1975 i.e., after foul months. That the complaint was not, therefore, maintainable after the S. .D. M. had granted the report. He has also argued that since the Governor forwarded the complaint to the police and F. I. R. was registered on the basis of that complaint the complainant would be responsible for tire consequences.

4. Thus the main objection in this case is that no action can be taken on the complaint under section 182, P. P. C. because the trial of the accused on the basis of the direct complaint is still pending. This Court in Ashfaq Ali v accepted this position. The State (P L D 1975 Kar. 87). It was observed in that case as under: - "Mr. Makhdoom Sharif contended that as a direct complaint was stilt pending, it could not be said that tile information given by the appli cant to the police could be known or believed by him to be false. The second contention was that since the complaint had been filed, the prosecution against the applicant, if any, was to be on the com plaint of the Court under section 211, P. P. C. and not under sec tion 182, P. P. C. In that context lie has referred to the case of Ramchand v. Emperor (30 Cr. L J 399) Mr. Sarki appearing for tile State very fairly concedes this position."

5. Similar view was taken in Lachmi Share v. Emperor (A I R 1932 Cal. 383), it was observed in that case that where upon police enquiry and report the com plainant files a naraji petition before a Magistrate, it is not competent for the Magistrate to issue process against the complainant under sections 211 and 182 without dismissing, the naraji petition. This was also the decision ill, A I R 1933 Cal. 614, in a similar matter.

6. The contention of the petitioner has all along--been that the police have not investigated this case, in an impartial manner. It wits, therefore, that nil spite of the police report being adverse, the learned S. D. M issued process against the respondent on opportunity, therefore, ought to be allowed to the respondent to produce his evidence and establish the allegations made by him against the respondent. Before deciding that case it would not be proper for the same Court to proceed against the petitioner for offence under section 182, P. P. C: The proceedings under section 182, P. P. C. are accordingly stayed and they may be disposed of after the case against the respondent pending before the learned S. D. M. is decided.

7. The petition is disposed of accordingly. Order accordingly.