1976 P Cr (PLP)

The facts forming the background of this application for quashment of tire criminal proceedings against the petitioner Shukur Illahi, pending in the Court of XV A. C. M., Karachi, are that respondent No. 2 Wali Muhammad filed a private complaint against the petitioner and four others including two ladies, all belonging to Lyallpur and admittedly his relations, in the Court of the Magistrate alleging that ire wanted to buy some land in Lyallpur particularly in his village Chiala where his other relations lived and expressed such desire to his relation Abdul Ghafoor accused No. 1 who happened to visit him six months before the filing of the complaint and the latter promised to oblige. After sometime Abdul Ghafoor sent him a message that suitable land was available for sale. The complainant thereupon sent his son to Lyallpur to see and enquire about the land who on return informed him that the land met the requirement of the complainant and the sale price of Rs. 20,000 was also reasonable. One month thereafter accused Abdul Ghafoor along. with other four relations including the, petitioner Shukur Illahi and two ladies came to Karachi to the complainant and told him that the seller of the land was urgently demanding earnest money of Rs. 10,000 as there were other customers interested in buying the land. The complainant accordingly paid Rs. 10,000 to the accused Abdul Ghafoor who passed it on to the accused No. 4 Mst. Zakia and all the five accused assured him in presence of the witnesses that the laid money would be treated as 'amanat' and would be definitely paid to the seller on behalf of the complainant. After about 15 days the complainant went to Lyallpur to finalise the bargain but was astonished to learn that the earnest money had not been paid to the seller Ghulam Nabi. He consequently demanded back his money from the accused but all refined to return it. He took the matter to Panchayat where also the accused flatly refused to pay back the money and showed complete ignorance whereupon he complained to the police at Lyallpur but getting no help came back to Karachi and filed this complaint under section 406, P. P. C. against all the five accused. The learned Magistrate after taking cognizance and recording the state ment of the complainant and his witnesses ordered issuance of bailable warrants against all the five accused including the petitioner which were sent for execution to Punjab. Hence, this petition by the petitioner Shukur Illahi, one of the five accused in the complaint, for quashment of the process and the proceedings against him. Mr. Munawar Malik, learned counsel for the petitioner, in support of the application contended that the complaint was patently false and frivolous and had been inspired by one Ataullah Advocate who hails from Punjab and is practicing at Karachi. An evacuee house had been transferred to the wife of the petitioner in Punjab by the Settlement Department. Aforesaid Advocate wanted her to sell the house to him but she refused and therefore this complaint to coerce the petitioner to sell the house to him. In support reliance was placed on several documents placed on the file. To substantiate the contention, the learned counsel argued that neither in the complaint nor in his statement the complainant had given any particulars of the land alleged to have been arranged for him or of the date on which the petitioner alongwith other accused came to Karachi when he handed over the money to them or of the relationship of the petitioner with the complainant. On the other hand, the learned counsel argued, the petitioner had never been to Karachi nor could he afford any such trip as he was a poor man getting Rs. 130 per month for working as a tailor ice the Army Ordnance Depot at Lahore. The learned counsel next contended that even if the complaint was assumed to be correct no case could be possible said to have been made out against the petitioner as there was nothing alleged against the petitioner except that he was present when the money was handed over by the complainant to the accused Abdul Ghafoor who handed it over to accused Mst. Zakia so that, the process issued against the petitioner for his facing the criminal prosecution at Karachi was abuse of process of the Courts. I find considerable force; it the arguments of the learned counsel for the petitioner. Indeed, only allegation made against the petitioner in the com plaint is that he was present when the complainant gave Rs. 10.000 to the accused Abdul Ghafoor who in turn handed it over to accused Mst. Zakia and that all the five accused told him that the money would be kept as 'amanat' for payment to the seller of the land. The complainant, however, has himself stated in his complaint that accused implicated by the petitioner were his relations. If that is so, presence of the petitioner, assuming he was present, was natural and could not saddle him with any criminal liability. Then, admittedly, the money was alleged to have been paid by the complainant to the accused No.1 Abdul Ghafoor who alone is alleged to have passed it on to Mst. Zakia. It has not been even alleged in the complaint against the petitioner that he had anything to do with the petitioner or had any interest in the land or had at any stage participated in the transaction in which the alleged money was passed. It is also not the case against the petitioner that he was entrusted with any money by the complainant or that he demanded it from the petitioner. It has also not been specifically alleged in the complaint that the petitioner gave any assurance. All that is alleged is a general allegation that all the accuse assured that the money would be kept as 'amanat' till paid to the seller, who is not even cited as a witness by the complainant. It is also true that the complaint also does not contain the particulars as contended by the learned counsel. In this view of the matter, I have no hesitation in holding that even if the complaint, without holding it, is assumed to be true no case is made out against the petitioner and the process issued against the petitioner living in Punjab to face criminal prosecution at Karachi on the allegation made in the complaint was calculated to harrass the petitioner and naked abuse of process of the Court. It has been repeatedly pointed out by the superior Courts that process on private complaint is not to be issued as a matter of course. It is to be issued only after the Magistrate has tho roughly sifted the allegations and has satisfied himself that prima facie case is made out against the accused implicated in the complaint. Reference be made here to the Supreme Court case reported as Shamim v. The State (PLD 1966 S C 170), wherein their Lordships endorsing the observations made by the Judicial Commissioner in the case reported as P L D 1950 Bal. 7, observed as under:‑ "Mr. Rao Muhammad Ashfaq Khan who appeared for the appellant before us invited our attention to Rashim Haji Sharif v. Mir Khan Jan P L D 1950 Bal.

7. In that case the learned Judicial Commissioner Quetta, had pointed out that one of the main objections of section 200, Criminal Procedure Code, was to protect the public in criminal Courts and that Magistrates must not lightly accept written complaints and proceed to issue process until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences. We have no hesitation in endorsing these observations." The instant case would, however, show that the Magistrate has issued the process against the petitioner in utter disregard of the above considerations that he is required to bear in mind. For the aforesaid reasons, this application is allowed and the process and the criminal proceedings issued against the petitioner on the complaint filed against him are quashed. Petition allowed.