P L D 1973 Karachi 564 (PLP)

This revision application under sections 439 and 56E‑A, Cr. P. C. is directed against an order of Mr. Ali Nawaz M. Budhani, Sessions Judge, Sanghar dated 14‑3‑1972, whereby he rejected the petitioner's revision application for quashment of the charge framed against the petitioner by the learned Megistrate under section 420, P. P. C.

2. The facts briefly are that respondent No. 3 Jalaluddin filed a direct complaint against the petitioner under section 420/ 423, P. P. C. on the allegation that on 18‑11‑1966, the petitioner had agreed to sell his land consisting of certain survey numbers, detail of which is given in the agreement of sale Exh. A comprising of 76‑12 acres situated at Deh Dabero, Taluka Shahdadpur at the rate of Rs. 500 per acre for a total sum of Its. 38,

250. It was further alleged that the agreement of sale was executed between the parties and Jalaluddin paid 1/4th of the sale price in cash in presence of witnesses including one Mr. Dhani Bux Saund, Advocate and Notary Public Shahdadpur, in the agreement the petitioner claimed to be the exclusive owner of the property and the remaining amount was to be received by the petitioner after entering into the registered sale deed and completing other formalities also.

3. However, it was found later on that the land agreed to be sold by the petitioner did not exclusively belong to him as he was a co‑sharer of the land along with others and on this basis a direct complaint was filed and the learned Magistrate after examining some witnesses framed the charge.

4. I have heard Mr. Abdul Latif Channa, A vacate for the applicant, Mr. Ahmed Ullah Faruqui, Advocate for respond ent No. 1 and Mr. Nazar Muhammad Babla, Advocate for the Sate. Mr. Channa's main argument was that as the respond ent No. 1 Jalaluddin has filed a civil suit against the petitioner in the Court of learned District Judge, Sanghar for declaration and possession and injunction which is pending decision, the charge framed by the learned Magistrate under the Criminal law is improper, illegal and may be quashed because it will cause multiplicity of the decisions before the two different Courts with regard to the same cause, when he was called upon to cite some case law showing that mere filing of a civil suit of necessity is a bar to the Criminal Courts to proceed for criminal offences, counsel relied upon Hafiz Abdul Khaliq Rahmani v. Abdul Ghani (P L D 1970 Kar.446), that was a case where a respondent persued his remedy in civil Court involving a transaction entirely of a civil nature but the suit was dismissed on merits and thereafter, the respon dent resorted to criminal prosecution of the petitioner four years after the dismissal of the civil suit and it was found that it was with an object to coerce petitioner to pay bad debt and in the circumstances of that case it was held by my learned brother Mr. Justice Muhammad Hayat Junejo that the criminal proceedings amounted to an abuse of process of Court in the circumstances. But this case in my opinion does not help the petitioner at all because here is an agreement between the parties where the petitioner allegedly sold his land and received Rs. 10,000 as part payment, claiming to be the exclusive owner of the land and later on ft was found prima facie at least that there are other co‑sharers also and thereby by deceitful means he obtained money. Not only this, the criminal complaint was filed by the respondent No. 1 a month earlier than the civil suit Le. on 22‑10‑1969, while the suit was filed on 17‑11‑1969 I also find that the petitioner when examined by the learned Magistrate under section 342, Cr. P. C. fn fact denied his signatures on the agreement of sale Exh. A already referred and this denial of the petitioner of his own signatures makes it more necessary in my opinion that this matter may be decided by the Criminal Court. I do not see any misuse or abuse of the process of the Court on the part of the respondent No.

1. It was held in Gianchand v. State (1968 S C M R 380), that determination of guilt or innocence of accused depend on totality of facts and circumstances revealed during trial Such stage having not reached the application for quashment of proceedings in the circumstances held rightly refused by the High Court. In the present case that stage has yet not reached but prima facie on evidence recorded by the learned Magistrate, as observed by the learned Sessions Judge goes to show that there existed reasonable grounds that the petitioner has committed the offence as alleged. As the trial of the criminal offences is province of the Criminal Courts alone Mr. Ahmed Ullah Faruqui, relied on Lal v. Emperor (A I R 1933 All. 42), wherein it was held that the existance of a civil remedy does not exclude trial by a Criminal Court of an offence. This was a case where one Lai Bahadur brought a case against Sulatman under sections 418 and 420, P. P. C. and section 109, P. P. C. on the ground that he negotiated and purchased from one Abdul Latif a plot of land but he was deceived by Sulaiman into believing that there was one incumberance on the property of Rs. 205 or little more whereas in fact subsequent to the sale being completed it was discovered there was another incumbra nce of Rs. 1,000 of which Sulaiman knew beforehand. The trial Magistrate had thrown the case out being almost entirely influenced by the consideration that Lal Bahadur empowered by a covenant. In the sale deed to recover any further money for which the land might be liable, presumably by a civil suit. It was observed by Boys, J. that "this is a wholly inadequate ground for throwing out a complaint where there is or is likely to be evidence of an offence. The Magistrate must consider whether they constitute a criminal offence entirely regardless of the fact that there may be a civil remedy. He is to error if he supposes that the existence of a civil remedy should necessarily exclude trial by a Criminal Court of an offence." The application was therefore, dismissed. The principles lay down by their Lordships of the Supreme. Court and in Allahabad case, I am of the opinion that there is sufficient material on record against the petitioner prima facie to have committed the offence alleged. Mere filing of a civil suit by the respondent is no bar in the circumstances of this case. I see therefore, see no flaw in the charge framed by the learned Magistrate or in the order of the learned Sessions Judge, which I uphold and dismiss this revision application. S. A. H. Petition dismissed.