1969 PLP 170 (SCMR)

C. M. Latif Rawn, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State. Date of hearing': 3rd December 1968. HAMOODUR RAHMAN, C. J.‑This is an appeal by special leave from an order of a learned Single Judge of the High Court of West Pakistan dismissing an application under section 561‑A of the Criminal Procedure Code for the quashment of criminal proceedings against the appellant. It appears that on the 9th October 1961 one Ghulam Muhammad borrowed a sum of Rs. 7,000, from Malik Faizullah and gave a post‑dated cheque to be encashed on the 4th January 1962, for that amount to the respondent Muhammad Yaqub, the son of Malik Faizullah, on the Bank of Bahawalpur Limited. This transaction was evidenced by an agreement executed on the same date and this agreement inter alia provided that if on the due date Muhammad Yaqub could not collect the amount of the cheque, then the said borrower would be liable for the offence of cheating and Muhammad Yaqub would be entitled to recover the amount from the properties of the borrower and only in the event of the amount not being realized from the borrower's properties, Muhammad Yaqub would be entitled to recover the amount thereof from the properties of the present appellant. It appears that the cheque was dishonoured and for this a civil suit was filed against the said Ghulam Muhammad and the present appellant as the guarantor of Ghulam Muhammad for the recovery of Rs. 3,200 being the balance of the amount of the loan. A complaint was also filed by the said Muhar4wad Yaqub against Ghulam Mohammad and the present appellant under sections 420 and 406 of the Pakistan Penal Code. In view of the civil suit having been filed the said Ghulam Muhammad applied to the District Magistrate to make a reference to the High Court to have the criminal proceedings against him quashed. The appellant came direct to the High Court by an application under section 561‑A of the Criminal Procedure Code for a quashment of the proceedings. The High Court dealt with the application of Ghulam Muhammad and by an order passed on the 4th June 1964, rejected the recommendation of the District Magistrate in Criminal Revision No. 661 of 1963 and refused to quash the charge against Ghulam Muhammad. The application of the present appellant was after noting the contention that there was no criminal liability against him, admitted for hearing and notice issued to the State. On the 7th June 1965, however, the learned Judge without considering the case of the petitioner dismissed his application on the ground that he had already refused to accept the recommendation of the District Magistrate regarding quashment of proceedings against Ghulam Muhammad, the co‑accused, without even noticing that the case of the two were different. One was directly responsible for the cheating while the other was, under the agreement of the 9th October 1961, only a surety, from whom the amount of the money advanced could be recovered only in the event of the main borrower failing to pay or the amount being not recoverable out of his estate. It is unfortunate that the learned Judge should have fallen into such an error entirely misconceiving the case of the present appellant. There can be no manner of doubt that the criminal proceedings against the present appellant were hopelessly misconceived, for, he was in no way criminally liable under the agreement of October 1961 nor was there any evidence to show that he had himself either made or abetted in the making of any false representation to the lendor. Learned counsel appearing for the State also concedes that having examined the facts of the case he must support the appellant. The respondent Muhammad Yaqub who was duly served, has not even bothered to appear and is presumably not interested in this proceeding at all. Be that as it may, we have no doubt in our mind that the criminal proceedings against the appellant were wholly misconceived and an abuse of the process of Court. Those proceedings as against him, must accordingly be quashed. This appeal is, accordingly, allowed and the criminal proceedings pending against the appellant in the Court of Magistrate, First Class, Multan are quashed. Appeal accepted.