1999 P Cr (PLP)

5. Factors, aspects, points and grounds enumerated in the petition have been reiterated to impress that:-- (i) Registration of repeated F.I.Rs., is, by itself, a proof of the fact that same are based on ill-will, mala fides and misuse of official position. (ii) Criminal proceedings have been launched to pressurize the petitioners to deter them from pursuing the civil suit, with a design to conceal their own mismanagement of accounts. (iii) Such proceedings are not sustainable in face of pending civil litigation. (iv) In wake of successive orders, dated 5-1-1992 and 8-4-1993, impugned F.I.R. could not be registered or investigation undertaken on the same facts and against same patties. (v) At the best, it is a case of rendition of accounts, and so vividly reflected by contents of all F.I.Rs. (vi) Sole object is to insult, humiliate and coerce the petitioners for collateral purposes. (vii) It is a clear case of double jeopardy. 6 On these premises, quashment, asked for, has been urged. Reliance has been placed upon Mahmood-ul-Hassan v. Imtiaz Khan and another PLD 1963 (W.P.) Kar. 481, Fazal Muhammad and others v. Collector, Lyallpur District and another PLD 1963 (W.P.) Lah. 485, Muhammad Siddiq and 5 others v. Mst. Badar Munir and another 1993 SCMR 233, Ghulam Siddique v. S.H.O. Saddar, Dera Ghazi Khan and 8 others PLJ 1979 Cr.C. Lah. 32, Yaqoob Khan and another v. The State and 3 others 1971 PCr.LJ 266, Mian Bakhsh Elahi and others v. The State and others 1993 PCr.LJ 856, Saeed-ud-Din Qureshi v. The State PLD 1963 (W.P.) Kar. 54, Anand Ram v. Moti Ram and 3 others PLD 1987 Quetta 230, Syed Allah Dost v. Haji Muhammad Alam and 12 others PLD 1987 Quetta 235, N. Manak Ji v. Fakhar lqbal and another 1969 PCr.LJ 411, Mushtaq Ahmad v. Station House Officer, Police Station Munawan, Lahore 1984 PCr.LJ 1454, Dyram D. Avari and others v. The State 1989 PCr.LJ 817 and Muhammad Moosa and another v. The State another 1987 SCMR 601 in support of the contentions.

7. Conversely, impugned action, has been acclaimed to be in consonance with law and correct in all respects with the assertion that the petitioners and others joined hands and acted in connivance against the interests of the Corporation and, thus, rendered themselves liable and prone to criminal liability. Syed Muhammad Ahmad v. The State 1972 SCMR 85 and Marghoob Alam and another v. Shamas Din and another 1986 SCMR 303 have been referred and quoted to emphasize that there is no invariable rule and principle to postpone criminal proceedings pending civil litigation. Accordingly, rejection of the petition has been vigorously demanded.

8. On following grounds, a criminal case can be quashed in exercise of Constitutional jurisdiction as observed/held and laid down in Ch. Pervez Ellahi v. The Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others 1995 MLD 615:-- (a) when the case is of no evidence; (b) when the very registration of the case is proved to be mala fide on the face of record; (c) when the case is of purely civil nature, criminal proceedings are not warranted in law, especially to harass the accused; (d) when there is serious jurisdictional defect; and (e) when there is unexceptional delay in the disposal of the case causing deplorable mental physical and financial torture to the person proceeded against. Same, accordingly, are liable to be analysed and adverted to in perspective of facts of case in hand.

9. In this context, it goes without saying that liability of petitioners Nos. l and 2, if any, has not been determined with exactitude by competent forum. Without establishing any claim by having recourse to prescribed procedure, no rope, can be put around the neck of the petitioners. Resort to coercive measures and even recovery as arrears of land revenue of vague or unascertained claim is hardly justified under any canon of law. Needless to observe that such claim can be conveniently tailored and prevaricated with impunity. In no way, such like claim, can be taken to be apodictic and spoken or advanced as an oracle. The petitioners also deserve same solemnity in speech and claim viz-a-viz the complainant, who, is to be taken at par with them and both claims are liable to be juxtaposed to arrive at a definite conclusion. Had Ghee Corporation been purely a private concern, facility to launch extraordinary and coercive measures and criminal proceedings could never be dreamt of. As such action and proceedings are perfunctory on this count and, thus, liable to be struck down on this score alone.

10. There can be no cavil with the proposition that the matter is essentially of "civil nature and liability". Undoubtedly, civil suit, is pending adjudication before competent Court, no matter, it has not yet reached the brink of conclusion. Earlier two endeavours of identical nature have already ended in smoke as indicated above. Third attempt in the same fashion and direction with embellishment cannot give a new lease of life to the jeopardy, to which, the petitioners, were already subjected not only once, but also, twice in the past. Seemingly it looks a contrivance, to ensnare the petitioners on one pretext or the other. Such exercise spread over a span of two years. Respondent No.1 well knew, from the beginning, that without intervention of civil Court, the matter would hang in balance. Thus, approaching the police repeatedly by initiating criminal proceedings and prosecution is vividly to deter petitioners Nos. l and 2 to get the civil liability adjudicated by a competent forum. Apparently, criminal prosecution was launched after the start of round of civil litigation. As a necessary corollary, very registration of the case is patently reflective of mala fides and simply to achieve ulterior motives. In such like situation, this Court cannot stay back, and feels no option, but, to exercise its Constitutional jurisdiction.

11. In Criminal Miscellaneous No. 132/Q of 1986; in re: Haji Dilmir Khan and others v. The State it was held that where the dispute between the parties was purely of civil nature, criminal case was malicious prosecution and such proceedings could not be permitted to continue. Consequently, F.I.R. was quashed. Similar view was expressed in another unreported judgment, dated 8-6-1987 in Criminal Miscellaneous No.327/Q of 1986 in re: Faqir Muhammad v. The State. Following illuminating observations made in Mian Bakhsh Ellahi v. The State 1993 PCr.LJ 856 put last nail in coffin of prosecution case:-- "suffice it to say that the matter being purely of civil nature, resort to criminal jurisdiction was a clear abuse of process of law."

12. Principle of law, enunciated and expounded in aforementioned cases, is applicable on all tours to the facts of instant case, which, can be termed to be classic example of misuse of official position by repeated endeavours despite orders, dated 5-1-1992 and 8-4-1993 of cancellation of successive cases.

13. In wake of such orders, impugned F.I.R. is nothing but to flog dead horse, and catch at a straw. Even an exercise of serious ratiocination in this behalf, cannot, entail and positive outcome. Action in this regard in palpably fallacious, based on wrong notions, patently misconceived, unwarranted and cannot be countenanced, allowed to perpetuate and continue as held in Ameer and others v. Station House Officer 1988 PCr.LJ 2032.

14. Vide an order, dated 13-4-1993, this Court took "suo motu" notice, of the order, dated 8-4-1993, reported in daily "Pakistan", by which, accused including petition No.2, named therein, were discharged. Such order does not suffer from any lacuna, muchless serious sizzling and bristling infirmities, so as, to call for interference in exercise of revisional jurisdiction. Rather the same is to complete conformity with previous order, dated 5-1-1992 on the subject and no other inference and view was possible. Matter, accordingly, is dropped.

15. For the foregoing reasons and above discussion, writ petition is allowed and impugned registration of criminal case vide F.I.R. No.62 of 1993 against all the petitioners is declared to be without lawful authority and of no legal effect, significance and proceedings thereunder are quashed. Q.MH./M.A.K./M-890/L F.I.R. quashed.