1987 PLP 3302 (MLD)

Nasir Ali v. Munshi Mehar Khan P L D 1981 S C 607 rel. S.Zafar Abbas Zaidi and Muhammad Karim Anjum for Petitioner. Saadullah Khan Miankhel, A.A.-G. for the State. Date of hearing: 13th September, 1987. Amanullah Khan petitioner herein has made this application under Section 561-A Criminal Procedure Code for quashment of the proceedings pending against him in the Court of S.D.M., D.I. Khan, (respondent No. 2) purportedly under Sections 294-A and 294-B of Pakistan Penal Code.

2. Facts of the giving rise to this petition briefly stated are that the petitioner alongwith 4 others entered into a partnership business by the name "Home and Life Pre-payment Sales Schemen" on the terms and conditions given in the partnership deeds dated 2-10-1983. Due to public complaints proceedings were initiated in which ultimately it transpires that the partnership business was hit by the mischief of sections 294-A and 294-B of the Pakistan Penal Code. Ultimately the matter was referred to the Provincial Government wherefrom direction was issued for necessary action whereupon the SHO of the concerned Police Station filed a complaint under sections 294-A and 294-B of the PPC against the accused in the Court of Illaqa Magistrate. When warrant was issued against them, aggrieved by the issuance of warrant against the petitioner and his partners they have made the present petition for quashment. Similar prayers have been made in Criminal Miscellaneous No. 26/87, 29/87 and 33/87. As common questions of facts and law are involved in all these petitions, I proposed to dispose all of them by this single order.

3. The learned counsel for the petitioner contended that the complaint filed by SHO was not entertainable as it was not made by the order of, or under authority from (Federal Government) or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments, as provided for under section 196 Cr.P.C.' The learned counsel for the petitioner further contended that the business run by the petitioner was not covered by section 294-A Pakistan Penal Code. In support of his contention the learned counsel for the petitioner relied on Mst. Mumtaz Begum and 4 others. v. The State (1986 P Cr. L J 97) and Khalid Taqi Khan v. The State and 2 others 1982 P Cr.L J 1313.

4. On the other hand the learned counsel for the respondent argued that the complaint has been filed under sections 294-A and 294-B of the PPC and that the section 196 Cr.P.C. reference only to section 294-A and not to section 294-B P . P . C . He also referred to 196-B of the Cr.P. C. which is in an exception to section 196-A of the Criminal Procedure Code. With regard to the merits as to whether in the business the element of loss is there and it comes within the mischief of sections 294-A and 294-B P.P.C. reliance were placed on Public Prosecutor v. M.Munisami Naidu A I R 1934 Madras 464 and The Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi and another P L D 1958 (W.P.) Lah.

887. The learned counsel for the petitioner further contended that the learned Magistrate before whom the cases are pending is going to record summary conviction of the accused-petitioner depriving the petitioners of their defence.

5. After hearing the learned counsel for the parties and going through the relevant law I find no substance in the present petition at this stage. The matter was investigated and referred to the Provincial Government wherefrom necessary action was ordered to be taken as contemplated under section 196-B Cr.P. C. and proceedings were ordered to be put in Court by the DSP Headquarter. There is also sanction of the Provincial Government available on the file vide letter No. H.O. No. OP-15 (160)/85/2435 dated 23-10-1986 from Section Officer (Opinion) Government of N.-W. F. P., Law Department addressed to the Section Officer-IV,? Government of N.-W.F.P. Industries Department, prima facie the proceedings initiated against the accused? petitioner cannot be challenged on the grounds raised by the learned counsel for the petitioner at this stage. So far evidence has not been recorded and the cases were fixed for appearance of the accused when the present applications for quashment were made. These applications are, therefore, dismissed in view of the law laid down in Nasir Ali v. Munshi Mehar Khan (P L D 1981 SC 607). It is, however, observed that these cases being of important nature .are not to be disposed of summarily so that the accused respondent may have fair chance of defence. M. Y. H./575/P??????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.