1986 P Cr (PLP)

Shabbir Lali and Abdus Satar Najam for Petitioner. Irshad Ahmad Khan for the State. Date of hearing: 2nd February, 1986. This is a petition under section 439/561‑A, Cr. P.C by Malik Muhammad Sarfraz Awan, petitioner, for quashment of criminal proceedings pending against him under section 420/468/471, P. P C. in the Court of a Magistrate at Lahore.

2. The prosecution case in brief is that Muhammad Fazil Awan, father of the petitioner, executed a partnership deed with Begum Akhtar Sultana, mother of Lt.‑Col. Muhammad Hassan Safdar, respondent No.1, and others on 9‑4‑1970, whereby agricultural land in Raiwind belonging Begum Nazir Akhtar Sultana was converted into partnership property, with a view to the setting up of a model agricultural farm, to be managed by Malik Muhammad Fazil Awan, who was appointed as the managing partner, and who was given share to the extent of 50 Acres for which , he paid Rs.33,

500. According to the said 250 Acres of land were to be treated as partnership property, .ach partner, including Malik Muhammad Fazil Awan, being treaded as owner of 50 Acres. It appears that on. 30‑12‑1971, Malik Muhammad Fazil Awan gifted his share of 50 Acres in the partnership land to his son Malik Muhammad Sarfraz Awan, the present petitioner. In early 1981, Malik Muhammad Sarfraz Awan, petitioner, agreed to exchange his land with that of Begum Nazir Akhtar Sultana and Muhammad Jamil Safdar, consequent on which Begum Nazir Akhtar Sultana and Muhammad Jamil Safdar instituted a suit for partition of property, in terms thereof. This suit was dismissed in default on 9‑8‑1981, where after a suit for declaration and permanent injunction was filed on 12‑4‑1982 by Begum Nazir Akhtar Sultana against Malik Muhammad Fazil Awan and Malik Muhammad Sarfraz Awan, petitioner, to the effect that the 50 Acr4s of land taken by the defendants was fraudulently taken from her and that they be restrained from showing themselves as owners thereof or from alienating the same to any third person. Earlier on 12‑12‑1981, Lt.‑Col. Muhammad Hassan Safdar, one of the partners and a son of Begum Nazir Akhtar Sultana, who was Commandant of the Security in the President's House sent a written complaint on the letterhead of the President's House to the D.I.‑G., Lahore, for the registration of a case of fraud against Malik Muhammad Fazil Awan and his son Malik Sarfraz Awan, petitioner, in consequence of which the present criminal case was filed. On 21‑1‑1985, Malik Muhammad Fazil Awan, the petitioner's father, died. Beging aggrieved by the continuance of criminal proceedings against him, Malik Muhammad Sarfraz Awan petitioner filed the present petition, which is before me for disposal.

3. On behalf of the petitioner it is submitted that the dealing between the parties being of a civil nature, no criminal were competent either against his father or himself and in any case, his father having died, the same cannot be continued against him, no criminal act stands imputed to him.

4. On behalf of the State, it is submitted that as the trial is almost complete and only the evidence of the Investigating Officer remains to be recorded and that judgment is expected soon, the present petition is not competent. In this connection, the learned counsel has relied upon Dr. Farrukh Hussain. Malik v, Messrs Appollo Enterprises Ltd. 1984 P Cr. L J 2933 and Muhammad Tufail v. The State 1979 S C M R 437.

5. I have heard the arguments of the learned counsel for the petitioner and the State. It is obvious that all the allegations are basically against Malik Muhammad Fazil Awan, the father of the petitioner who died on 21‑1‑1985. At, the time when Malik Muhammad Fazil Awan gifted the 50 Acres of land, being his share in the firm's property, to the petitioner, on 30‑12‑1971, the petitioner was a minor at that time. No criminal mens rea can be imputed to the petitioner at that time, nor has the same been suggested in the challan or in the prosecution evidence already recorded. In these circumstances, the present criminal proceedings against the petitioner deserve to be quashed.

6. For the foregoing reasons, this petition is accepted and the criminal proceedings pending against the petitioner under section 420/468/471, P.P.C in the Court of the Magistrate at Lahore, are hereby quashed. M.Y.H, Proceedings quashed.