1989 PLP 857 (MLD)

Muhammad Aslam for Applicant. Himayat Ali Pirzada for Respondent No.

1. Anwar Tariq for Respondent No.2. This is a criminal miscellaneous application filed by the applicant for quashment of the proceeding under section 107/117, Cr.P.C. initiated by A.C, and S.D.M. Liaquatabad, Karachi Centre, against the applicant. Brief facts of the case are that on 7‑9‑1988 a notice was issued by the Enquiry Court to the applicant on application titled application for action and relief. The learned Magistrate on receipt of this application made an endorsement on this application `Petitioner Salahuddin son of Alauddin, Block No.1 Quarter No.90, Liaquatabad, Karachi. Heard the complainant. Summon other party. The application made by the respondent Salahuddin reads as under:‑ "It is respectfully submitted that the petitioner is doing a business of manufacture of ladies and gents shoes factory on Nod Plot ‑No.9, Liaquatabad, Karachi. In the month of October, 1983 one Gulzar Ahmad owner of Alamgir Enterprises situated at 36, Chemical Street came to me and introduced himself as Importers and Exporters and showed some samples and after showing some other items used in the factory he told the applicant petitioner that he will get the goods from Bangkok at cheaper rates and supply them to the petitioner. You give me the order. At this the petitioner asked him that after consulting his father he will place the order. Thereafter the accused again showed some samples and petitioner agreed to place the order to the accused upon the pressure of the accused. The accused told that the goods will reach in a month. In this way the accused took Rs.72,000 (Rupees seventy‑two thousand only). He did not give the goods and also did not return the amount, first he used to beg and say that he will return the amount. Now he has totally refused to return the amount on the contrary has started threatening the petitioner on phone. Because of these threats the petitioner has danger of his life and that the accused resides at 7/8 Maqboolabad Block No.2 P.E.C.H.S., Karachi. It is, therefore, prayed that action be taken against the accused and the orders be passed for protection of the petitioner and return of his amount." On the basis of this application without passing any order under section 112, Cr.P.C. or 117, Cr.P.C. the proceedings have been initiated. Mr. Muhammad Saleem assisted by Mr. Tasawar Ali Hashmi has appeared on behalf of the applicant and it is challenged that the proceedings initiated, are without sanction of law thus cannot be sustained. I have heard the learned counsel appearing for the applicant and gone through the application made by the respondent and order passed. It is apparent that the learned Magistrate on receiving the application from Salahuddin on 7‑9 1988 has issued a notice to the applicant and has initiated the proceedings of enquiry on the very day without recording any order under section 112, Cr.P.C. It is abundantiy clear that the learned Magistrate has put the machinery provided by the Code of Criminal Procedure in motion on receipt of application without passing any order under section 112, Cr.P.C. Hence without informing the petitioner the substance of the information against him and presumably the notice issued was under section 114, Cr.P.C. which was without previously passing the order under section 112, Cr.P.C. as required under the procedure/provisions of the Code. In these circumstances the entire proceedings from initial stage initiated are without any legal sanction and not in accordance with the provisions of the Criminal Procedure Code and the proceedings so started cannot be sustained for the above reason being illegal. The reference to this effect may be made to the case of Haji Ghulam Muhammad and 6 others v. The State reported in 1982 P Cr. L J

777. After hearing the learned counsel for the applicant, I am of the considered view that the powers of revision are made available and the order and proceedings taken by the learned Magistrate are without lawful authority and in clear violation of the procedure laid down in the Code of Criminal Procedure. Consequently, the Criminal Miscellaneous Application No. 348 of 1988 is allowed and all the proceedings and orders passed pending in the Court of A.C. and S.D.M., Liaquatabad are hereby quashed. The learned counsel for the State has also supported the application and does not oppose the quashment. In this view of legal position it is not resisted by Mr. Anwar Tariq who has filed power today on behalf of Respondent No.

2. H.B.T./G‑105/K Proceedings quashed.