1995 PLP 577 (MLD)

I have perused the case‑law cited by the learned counsel for the applicant. In the above Supreme Court judgment, their Lordships have been pleased to hold as under: "Normally, of course, every case should be allowed to proceed according to law, and resort to the provisions of section 561‑A of the Code of Criminal Procedure should not be lightly made, as this would circumvent the due process of law. This was the principle laid down by this Court in Ghulam Hussain v. Muzammal Khan on which Mr. Saeed Hassan Malik relies. The reported case is, however, distinguishable on the facts from the instant case. Each case must be judged on its own special facts and circumstances. The learned counsel for the appellant conceded that there was power vested in the High Court to quash criminal proceedings, if it was satisfied that a false complaint had been brought and the process of Court was, therefore, being abused not to advance the interests of justice but to subject the accused persons to unnecessary harassment. We are convinced that the present cases are of that nature and, consequently, to order passed by the learned Chief Justice requires no interference by this Court. Both the appeals are hereby dismissed." The principle laid down in the above case is that of course the High Court has the power to quash the proceedings under an F.I.R. if the same on the face of it is mala fide and if the contents of F.I.R. by itself would show that no cognizeable offence is made out but as held in this Supreme Court case it is in very rare cases that the resort to provisions of section 561‑A, Cr.P.C. should be made. The said provision is not to be applied lightly but the case has to be examined minutely on its own merit. It may also be observed that in criminal cases each case depends on its own attending facts, circumstances and features. It is not that every case would be identical to case in hand. In the present case much emphasis has been laid down on the provisions of section 74(7) and (8) which read as under: "

74. Audit.‑‑‑(1). .............................................................................................

(7) On receipt of the report under subsection (6), the Accounts Committee shall‑‑‑ (i) determine whether the audit objections have been complied with; (ii) fix responsibility and liability for embezzlement; fraud, criminal misappropriation, loss, waste or misapplication of the local fund or property of the council and report the names of the persons who are considered responsible therefor to Government for such action as may be considered necessary; (iii) require the council to comply with such audit objections which have not been complied with or rectified. (8) Every member or servant of a council and every person charged with the administration of the affairs of a council, or acting on behalf of a council shall be liable for the loss, waste, misapplication or unauthorised application of any moneys or property belonging to the council which is a direct consequence of his negligence or misconduct, and the liability of such member, servant or person shall be determined by the Accounts Committee in the prescribed manner." As against this the definition of cheating which is punishable under section 420, P.P.C. is provided in section 415 of the Pakistan Penal Code which reads as under: "

415. Cheating,‑Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person or any other person in body, kind, reputation or property, is said to `chest'." This provision very clearly shows that in case a person deceives or cause any damage or harm to property, he would be liable for punishment under section 420, P.P.C Similarly, section 409, P.P.C. deals with punishment of criminal breach of trust by public servant or Banker merchant or agent. It may further be observed that provisions of section 5 of Act II of 1947 provides as under:‑‑‑

5. Criminal misconduct.‑‑‑(1) A public servant is said to commit the offence of criminal misconduct‑‑‑ (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as motive or reward such as is mentioned in section 161 of the Pakistan Penal Code; or (b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his use any property entrusted to him or under his control as a ' public servant or allows any person to do so, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." A simple question was put to the learned counsel for the applicant if he could refer any case‑law to the effect that in case provision for taking action is provided under Sindh Local Government Ordinance, no criminal prosecution can be instituted against the public servant even though prima facie a cognizable offence is committed. In the present case the report shows I that three vehicles which were disposed of by the applicant were vehicles of 1989, 1987 and 1986 Models for which offset price in the year 1992 was fixed at ' Rs.50,000, Rs.30,000 and Rs.25,000 respectively which is obviously not even 1/8th or 1/10th of the market value as argued by the learned Additional Advocate‑General from the report itself. As regards the other judgments cited by the learned counsel for the applicant, it may be observed that none of these apply to the case of a public servant. Admittedly the Chairman of the District Council is a public servant; and that vehicles sold by him bear the number of Government of Sindh. If the vehicles had been the property of Local Council the number assigned to the vehicles would be `GL' or `GA'. In those circumstances, I am of the view that it will be too early to stiffle the proceedings against the applicant instituted under the said F.I.R. The petition is accordingly dismissed.

2. The application is dismissed as having become infructuous. N.H.Q./B‑267/K Petition dismissed.