1990 P Cr (PLP)

Akhlaq Ahmed Siddiqui for Respondents Nos. 2 and 3 Aziaur Rehman Shaikh for the State. Date of hearing: 11th May, 1989. Respondent No.l Guaffar Ahmad had filed private complaint in the Court of A.C.M. Mahmoodabad, Karachi (South), against the petitioners and respondents Nos. 2 and 3 under section 506(2)/323/324/34, P.P.C. The allegations were that all the respondents (in the complaint), that is, the petitioners and respondents Nos. 2 and 3, came to the house of respondent No,1 on 12‑7‑1987 at 2‑00 p.m., threatened respondent No.1 and Ills family member, and demanded papers of property, that all of them were armed with Dandas and Chhuris and injured the complainant and his father and ran away. The matter was reported to Mahmoodabad Police but F.I.R. was not recorded. Hence previous complaint which was filed on 25‑8‑1987. Statement of complainant was recorded the same day, preliminary enquiry was ordered wherein statements of Tapir Jawed Tailor and Nawab Khan Driver were recorded the next day and learned A.C.M. vide impugned order dated 27‑8‑1987 took cognizance under section 506-B/323/34, P.P.C. No witness has been examined.

2. The applicants seek quashment of proceedings. It is sated that the parties are closely related and belong to Lahore and respondent No.1 alone is temporarily residing at Karachi that respondent No. l is paternal‑cousin of the petitioners and respondent No.2 whereas respondent No.3 is mother of petitioners and respondent No.2, that litigation is pending between the parties at Lahore in respect of ancestral property. It is alleged by the petitioners that respondent No.1 has filed the complaint, on false allegations just to pressurise the petitioners and respondents Nos.2 and 3 to concede to his demands.

3. Learned counsel of the parties as well as learned A.A-G. for the State, have been heared.

4. The relationship between the parties can be better understood from the following pedigree table: Basheer Ahmed Nazeer Ahmad Ghaffar Ahmad Mst. Sabira Bib Res. No. I/ Res. No. 3 widow Complainant of Nazeer Ahmad Mohammad Sabir Mohammad Shabbir Tanveer (Applicant No. 1) (Applicant No. 2) (Respondent No. 2)

5. It is an admitted position that the petitioners arid respondents Nos. 2 and 3 (that is to say all the four` respondents; accused in the complaint case are, residents of District Lahore. Even respondent NO‑1 is permanent resident, to of the residents of District Lahore as would appear from his own prorate complaint same place in District P.P.C. against Sabir, Shabbir and Sabira Bibi (present under section 37 respondent No.3) which he (respondent No.1) had failed in the petitioners and as Magistrate, Lahore (certified copy at page 39 of the isle). This Court of 1st Class Magistrate, fitted position that litigation is pending between tile parties at is also stn admitted position annexure `A' is copy of plaint in a suit filed by the petitioners and others in the Court of Civil Judge, Lahore against respondent No.1 Ghaffar Ahmad, his father in respect of landed property transferred brother and left in India. This Surajmal was a refugee Meo Muslim and lieu of the property was the ancestor of the parties. The property in this suit is the real bone of contention between the parties. Then there is a private complaint tinder section 379, P.P.C. tiled by respondent No.l against the present petitioners and the mother Mst. Sabira Bibi (respondent No.3) in the Court of Magistrate 1st Class. Lahore sometime in 1986, It thus clear that there can be no dispute about two things. First that the parties belong to district Lahore and arc settled and at both and have landed property there. Second, litigation in respect of landed property is pending between the parties at Lahore. Third, respondent No.1 had filed a private complaint under section 379, P.P.C. against the petitioners and their mother at Lahore. All these circumstances indicate that respondent No.1 had instituted private complaint against the petitioners and their mother at Karachi mala fide and with the sole purpose to harass them and to force them to undergo the inconvenience and expenses of coming to Karachi every now and then on the dates of hearing. Tile very Karachi address of respondent No.1 appears to be doubtful. He belongs to District Lahore and although he could be temporarily staving at Karachi in connection with his employment or business, he has not been able to give any legitimate explanation for staying at Karachi as in his private complaint he does not disclose his occupation. It is highly unnatural that an elderly lady like Mst. Sabira Bibi, mother of the petitioners and herself an accused in the complaint case, would come armed with Dandy and C'hhuri to the house of respondent No.1, as claimed in parts. 3 of the complaint, and would take F part in tile assault upon respondent No.l and his family. Tile motive of the assault is also unconvincing. It is alleged that tile petitioners and their brother and mother demanded papers of the property but all tile relevant papers must already have been filed is the civil suit pending at Lahore and, at any rate, respondent No.1 could not be expected to keep these papers at his temporary Karachi address and not at his permanent address in District Lahore. I am, therefore, inclined to agree with learned counsel of the petitioners that the criminal proceedings instituted by respondent No.1 against tile petitioners and respondents Nos. 2 and 3 in the Court of A.C.M., Mahmoodabad, Karachi are liable to be quashed

6. Reliance may be placed on Amir Abdulla v. The State 1979 P Cr. L J 29 its which the facts were almost the same. The petitioners in the said case were also alleged to have come all the way from a distance of 200 miles to indulge irk the action complained against and the story was found to be fantastic and the complaint appeared to be a counterblast to the complaint filed by the petitioners and the proceedings were quashed. In the present case the petitioners are alleged to have come from Lahore, more than 500 miles away from Karachi, and the complaint of respondent No.l appears to be a counterblast of the civil suit instituted by the petitioners, respondents Nos. 2 and 3 and others against respondent No.1 and his brother and father.

7. It was, however, contended by learned A.A.‑G. and by counsel of respondent No.l that the petitioners had in fact moved an application under section 249:4, Cr.P.C. in the learned trial Court on 27‑2‑1988 but did not pursue it and, therefore, present petition under section 561‑A, Cr.P.C. is not Competent. It was further urged by them that resort to section 561‑A, Cr.P.C. can be made only when no alternate remedy is available whereas in the present case two alternate Comedies were available under section 249‑A, Cr.P.C. and section 235/239, Cr.P.C. C% inset of respondent No.l also urged that documents relied upon by the petitioners must be tendered in evidence at the time of the trial of complainant's case and till then they cannot be looked into. I beg to differ with these objections. Learned counsel of the petitioners relied upon 1.986 P Cr. L J 2749, 1087 P Cr. L 2096 and 1988 P Cr. L J 629 which all hold that it is not necessary for an aggrieved person to first move the trial Court under section 249‑A, Cr.P.C. and that such party can directly approach High Court under selection 561‑A, Cr Y.C. No judgment holding contrary view could be produced by learned counsel of the applicants or by learned A.A,‑(;. I, therefore, hold that this petition under section 561‑A, Cr.P.C. is competent. If the petitioners did not pursue their application under section 249‑A, Cr.P.C. before learned trial Court, D it makes no difference; it only meant that it stood dismissed as withdrawn on the day when petition under section 561‑A, Cr.P.C. was filed in High Court. In view of tile judgments referred to above, the pica of alternate remedies having not been first resorted to also does not hold good. There is also no force in the contention that tile documents relied upon by the petitioners cannot be looked into at this stage. These documents arc the certified copies of plaint in the civil suit pending between the parties at Lahore and of private complaint tiled by respondent No. 1 at Lahore against the petitioners and respondents Nos. 2 and

3. Authenticity of these documents cannot be doubled and in fact respondent No. l does not doubt their authenticity and I see no reason why the ‑Court should nut look into them at this stage.

8. For the above noted reasons I quash the proceedings impugned in this petition. N.H.Q./M‑989/K Proceedings quashed.