1985 P Cr (PLP)

Agha Ghulam Ali for the State. Date of hearing: 2nd December, 1984. Respondent No. 1 Muhammad Ashfaq had lodged report against the applicant at Sehwan Police Station District Dadu that the applicant had received Rs.6,000 from him at Sehwan in presence of witnesses Abdul Wahab and Irshar for supplying goods, but after a week he refused to supply the same. On this report the Police investigated the case and challaned the applicant in the Court of Civil Judge and F.C.M. Sehwan for offence under sections 406 and 420, P.P.C. The case remained pending before Civil Judge and F.C.M. Sehwan upto 1980, but no witness was produced by complainant/ respondent Muhammad Ashfaq before the said Magistrate, in spite of the fact that the applicant, who is resident of Karachi, had all along been appearing before the Magistrate at Sehwan on every hearing.

2. The case was transferred to Karachi by order of the Chief Justice, dated 14th December, 1980 in Criminal Transfer Application No. 17 of 1979. Even after transfer of the case to Karachi the witnesses did not appear before the Magistrate in spite of the fact that the complainant as well as the witnesses were residents of Karachi. Ultimately the applicant moved an application under section 249‑A, Cr.P.C. for dropping the proceedings against him. The learned A.C.M. (South) Karachi, who was seized of the case, partly allowed the plea of the applicant by stopping the proceedings under section 249, Cr.P.C. instead of dropping the same under section 249‑A, Cr.P.C. The learned Magistrate also ordered that the accused/ applicant will be tried again when P.Ws. are produced by the Police. This order was passed by the trial Magistrate on 30‑3‑1982.

3. Aggrieved by the above order the accused /applicant has filed this application praying that the learned Magistrate should have dropped the proceedings under section'249‑A, Cr.P.C.

4. From the very facts stated in the complaint and the: conduct of the complainant in filing complaint at Sehwan shows that the purpose of respondent No. 1 was to harass the applicant by dragging him from Karachi to Sehwan. It is also on record that the applicant and others had filed a suit, against Dr. Ashraf Mehmood in the year 1979. In that suit an interim order was also prayed which was dismissed by the trial Court. Against that order the applicant and others had filed a revision application which was admitted by this Court and is Civil Revision No. 59 of 1979. The plea of the applicant is that respondent No. 1 Muhammad Ashfaq has filed fa1Se and frivolous complaint against the petitioner at the instance of Dr. Ashraf Mehmood. Mr. Abdul Sattar Shaikh learned counsel for the State has conceded that the complaint at the face of it appears to be false and that the learned Magistrate should have dropped the proceedings under section 249‑A, Cr.P.C. instead of stopping the same. The record of the case shows that the case remained pending before the Magistrate of Sehwan from 13‑8‑1979 to 1‑11‑1980. During this period not a single witness was examined by the complainant/ respondent No.1 although warrants were issued against them. The case was then transferred to Karachi and tried by A.C.M. Baghdadi. From 14‑1‑1981 to 21‑3‑1982 several dates were fixed from 14‑1‑1981 to 21‑3‑1982, several dates were fixed, but not a single witness appeared although the complainant and his witnesses resided at Karachi. The conduct of the complainant shows that he had filed the case against the applicant simply in order to harass him. Even on merits the case appears to be of a civil' nature. Such cases are generally filed to put pressure upon the accused persons with ulterior motives. The learned Magistrate should in this case have held that the charge was groundless and that there was no likelihood of the applicant being convicted. For the above reasons the application is allowed. The order of the learned A. C. M. (South) Karachi, dated 30‑3‑1982 is modified so as to read that the Criminal Case (No.179/81) against the applicant is dropped and the applicant stands acquitted under section 249‑A, Cr.P.C. M.A.K. Application accepted.