P L D 1961 (W (PLP)

Syed Itrat Hussain for Appellant. Hayat Junejo for Respondents. Shamshuddin for the State. Date of hearing: 20th February 1961. This is an application by the accused under section 561‑A of the Code of Criminal Procedure for quashing proceedings in the Court of the City Magistrate Khairpur. A complaint under section 420/403, P. P. C. was instituted by Maulana Shabihul Hasnain against Muhammad Razi in that Court on 29‑4‑1960, on the allegation that by making false promise of selling a truck t6 him for Rs. 9,000, the accused obtained a sum of Rs. 5,00 from him as earnest money. He thereafter refused to hand over the truck to him or to return the advance money received by him.

2. The accused's allegations are that he actually sold the truck to him for the sum of Rs. 9,000 and delivered the truck to him, but received only the sum of Rs. 5,000 as advance. The balance of Rs. 4,000 was to be paid afterwards. This amount was not paid, and a suit for the payment of this amount was instituted, and it was decreed in his favour on 12‑12‑1958. In execution of that decree, the truck was put to auction, and was purchased by one Ali Muhammad for Rs. 5,

000. The complaint, for these reasons, was said to be frivolous.

3. No evidence has so far been recorded in the case, and it is not possible to say which of the two assertions is correct.

4. It is not proper for this Court when the proceedings are at this stage, to intercept and quash the proceedings. There is only a complaint before the Magistrate who, after recording evidence, will, if the complaint is found to be frivolous, discharge the accused. It will be only after recording some evidence that the falsity of the complaint will be brought to light. If com plaints lying at this stage are brought to this Court for scrutiny for the purpose of ascertaining the truth or falsity of the accusations, this Court will be converted into a Court of first instance in almost all criminal cases. Apart from this, it will be a request to this Court throw out the complaints without giving any opportunity to the complainant to bring evidence in support of his assertions. It will amount to stifling prosecution. No evidence has so far been recorded, and there is nothing on the record, besides the complaint, to show whether the allegations are true or false.

5. Proceedings can be quashed if there is something on the record to show that the accusations in "the complaint do not disclose an offence at all, or that the evidence adduced discloses no offence. In that event, the process of the Court can be said to have been abused. The Court below has done nothings besides summoning the accused to hear the evidence. The allegation in the complaint on the face of them disclosed a prima facie case t under section 420, P. P. Code. These allegations require to be tested in the light of evidence, and that stage has not yet been reached. It will be an abuse of the process of this Court if the complaints, which on their face show a case, are thrown out without allowing the complainant to produce evidence. This application is premature for action under section 561‑A, Criminal Procedure Code, and is rejected. K. B. A. Petition rejected.