P L D 1977 Peshawar 30 (PLP)

Ghulam Qadir and two other persons hailing from the district of Gujranwala have moved this petition under section 561-A of the Cr. P. C. for the quashment of proceedings 9n a complaint brought against them by Payao Khan respondent No. 1 under section 420/34. P. P. C. and which is pending disposal in the Court of Assistant Commissioner at Bannu. It may be added that Haji Umar Hayat Khan who is alleged to have sponsored the complaint and with whom it is further asserted that the petitioners have got litigations has been cited as respondent No. 2.

2. A reference to the complaint will show that Payao Khan complainant was having a poultry shop outside Parade Gate Bannu City, and that he got to know the petitioners when they came to Haji Umar Hayat Khan contractor and stayed with him as his guests. During the course of their conversation it was said that no business was larcative enough in the country, and that an ordinary labourer going abroad does earn a lot. On pursuasions of Ghulam Qadir and two others (respondents of the complaint) he also felt interest in going abroad. In the presence of Haji Umar Hayat Khan the respondents agreed to make arrangements for the complainant to go abroad and that he was told that he should visit them in Hafts Abad. However when he went after a few days to Hafia Abad he was told that they will be coming back to Bannu again. After about a month the respondents came to Bannu and they said that a visa for Dubai can be arranged for eight thousand rupees and that the complainant should pay them four thousand rupees straightaway and the rest shall be paid when the visa is made available. Thereupon the complainant gave them four thousand rupees in his shop in the presence of Saad Khan and Sher Mohammad. The undertaking of the respondents was that visa will be given within a month. These expectations were dashed by the subsequent either of the two requests. The grievance of the petitioners is that the) are related inter se and have got a dispute over land and its possession with Haji Umar Hayat Khan respondent No 2 who has set up Payao Khar not at all known to them with a view to coerce them through the mean of a false complaint under section 420/34, P. P. C. They add that the respondent No. 1 will not even be able to identify the petitioners if at a parade is held for that purpose.

3. The record of the complaint was presented), and by the same order the accused were to be summoned for 9-10-1976. The learned counsel for the petitioners has submitted that on 10-11-76 they came to know of the complaint and therefore they moved the present petition on 10-11-76. It is admitted that the complaint was fixed for 11-11-76 and that uptil now the petitioners have not appeared in the Court.

4. Neither Payao Khan nor Haji Umar Hayat Khan respondents to the present petition have filed any written statement or much less an affidavit to repudiate the allegations of the petitioners that the complaint has been sponsored by respondent No. 2 and Payao Khan has been moved to oblige him with a view to coerce the petitioners to forego their legitimate rights and that the petitioners were as a matter of fact known to respondent No

1. Rather a reference to para. 6 of the complaint will show that Payao Khan concedes that he is running his business in a premises rented from Haji Umar Hayat. That his relations are friendly with Haji Umar Hayat Khan will become clear from the recital in para. 2 of the complaint that he has been calling at his house.

5. The next question that falls for determination is as to whether there is any substance in the contention of the petitioners that they have got litigation with Haji Umar Hayat Khan and that be has set up Payao Khan in order to coerce them through the means of a false complaint in a Court at Bannu, the question of harassment to a person resident of Gujranwala to answer a criminal charge at 1tannu being quite obvious and understandable. The petitioners contend that they were lessees of land from Alamdar Hussain and Syed Akhtar Hussain as respects 951 kanals and 13 marlas of land in Hafiz Abad, per deed dated 23-2-71, the period of the lease being 10 years. In this respect they have placed photo star copy on the record and which I am marking for facility of reference as H. C.

1. This transaction was subsequently incorporated in a mutation copy of which is being marked by me as H. C. 2 attested on 28-2-72. This land was sold by the lessors to Haji Umar Hayat Khan, vide, sale deed dated 10-F-75 marked by me as H. C.

3. Sardar Mohammad and Ghulam Qadir petitioners and a third man who was a lessee alongwith them apprehended dispossession by Haji Umar Hayat Khan and they therefore instituted a suit on 26-7-75 but that was disposed of on the basis of the statement dated 20-3 76 of the counsel for Haji Umar Hayat Khan and other defendants. The order that wag passed was that the defendants will not dispossess the plaintiff's during the lease period except through Court of law, Exh. H. C. 4 photostat copy marked by me refers. Ibrahim a maternal uncle of one of the petitioner lessees brought a pre-emption suit against Haji Umar Hayat Khan on 9-6-76 copy of the complaint as attested by the counsel being marked by me as H. C.

5. A perusal of the sale deed in favour of Haji Umar Hayat Khan and plaint in the pro emption suit show s that he has paid five lacs of rupees and his predicament is that the lessees have got a lease period which will not expire before 1981. It is but natural that he is very anxious to got into possession.

6. Payao Khan as also Haji Umar Hayat Khan were not present in Court today and a reference to the statement of Payao Khan recorded by the Magistrate before that he assumed jurisdiction on 15-9-1975 in the matter will not be out of place. It reads:- "I have (sic) the complaint produced by me in the Court. It was dictated by me to the petition writer who then drafted my complaint accordingly. It was then read over to me which I admitted correct and then I signed it in token of its correctness. It is correct and serve (sic) my purpose correctly." This statement is not on oath though the law requires that it should be so and then to my mind it does not tantamount to an examination of the complainant as contemplated by section 200 of the Cr. P. C. All that the Magistrate appears to have done is this that he had satisfied himself that the person appeared before him was the complainant and that the complaint was in accordance with his instructions and that it was subscribed by him and that it was correct. This is ridiculous. The Magistrate was duty bound to examine the complainant with reference to accusation made and he should have satisfied himself that what the complainant was stating made out an offence and gave him jurisdiction to proceed. The examination should be with reference to the complaint and it is the duty of the Magistrate to elicit from the complainant not only what is his grievance and for that reason what offence has been committed but in whose presence and by whom. The Magistrates should always be very careful to ascertain the residence of the person accused and there should be a very thorough examination and a greater amount of conviction before that a person is summoned from another district. Tendency to coerce by frivolous criminal complaints and thereby abuse the processes of the Courts is on the increase. Coercion through the instrumentality of the magistracy is a matter of great concern and it has got to be checked in the interest of justice.

7. If the Magistrate at Bannu in this case had examined the complainant thoroughly he would have found that a person was setting up a story against the residents of a place located in a district as far away as Gujranwala and that a sum of Rupees four thousand was alleged to have advanced without a receipt by a person who was claiming a poultry shop. The omission of the learned Magistrate to examine the petitioner without an oath is also regrettable and though he was required to record substance of the examination his record shows a detailed examination which is off the point.

8. The contention of Mr. Usman Ali Shah, learned counsel for the respondents, that the litigation in Exh.

11. C. 4 was concluded by a com promise and therefore Haji Umar Hayat Khan had no motive for arranging the false complaint conveniently overlooks that all the approaches to ejectment were barred for about ten years and Haji Umar Hayat Khan if be was at all anxious to get the dispossession of the petitioners had to adopt underhand methods like the one of which the petitioners feet aggrieved.

9. On the view of the matter that I take, I need not enter upon a detailed discussion as respects the offer of the learned course), for the petitioners that Payao Khan may be, sent to Lahore at his expense for identification in presence of some Magistrate at Lahore. A parade could even be arranged in any district other than Bannu within the jurisdiction of this Court.

10. The petition is accepted and the proceedings are quashed. S. A. H. Petition accepted.