PLJ 1996 Cr. C. (Karachi) 1371
[Circuit Bench Hyderabad]
Present: GHOUS MUHAMMAD, J. AARUB KHAN-Appellant
versus
HARIS M.B. AHMAD and 3 others-Respondents
Criminal Acquittal Appeal No. 76 of 1994, dismissed on 30.11.1995
(i) Criminal Procedure Code, 1898, (Act V of 1898)--
—S. 417(2)--Appeal against acquittal-Preliminary objection-That Respondent No. 1, being attorney of Respondents No. 2 and 3 (his mother and sister) who entered into sale agreement with appellant on their behalf, has not filed power of attorney, so he cannot cause appearance and cannot be allowed to defened-Held : Power of attorney is not in dispute in this appeal-Contention of appellant is misconceived and against natural justice because appellant has impleaded Respondent No. 1 in memo of appeal, all allegations are directed against him, even in complaint before Magistrate he was involved-It is general principle of law that all parties to pleadings has right of defence and audience hence objection is devoid of any legal force arid deserves rejection.
[P. 1375] A PLD 1981 Lah 302 rcf.
(ii) Criminal Procedure Code, 1898, (Act V of 1898)--
—S. 417(2)~Preliminary objection-No fair opportunity was given to appellant or his counsel to contest application u/s 249-A Cr. P.C.-Besides, lawyer at the original stage was «oi competent enough and appellant being illiterate could not decipher between competent and incompetent lawyer-Held: Record of case shows, repeatedly dates were sought by appellant, presence of appellant and his lawyer at the time of hearing of arguments, and they wore given full opportunity to advance submissions and arguments, No ex-parte order or ruling present on record-Allegations and averments made in respect of competence of an advocate at his back are wholly uncalled for-No breach of violation of principles of justice on the face of record neither appellant condemned unheard-Contention raised by appellant amounts to abuse of process of court. [P. 1376] B, C & D
PLD 1969 AJ&K 65 ref.
(in) Criminal Procedure Code, 1898, (Act V of 1898)-
—S. 249-A-Contention, that Magistrate while exercising power under Section 249-A Cr.P.C. materially erred because only two out of six witnesses were examined by Magistrate during proceedings under Section 202 Cr. P.C., hence proceedings before Magistrate stood vitiated- Held: Application Under Section 249-A Cr. P.C. cau be filed at any stage of proceedings and it is not necessary and there is no requirement that such application has to be filed after evidence of all witnesses is recorded--Only requirements to fulfilled are first, that hearing is to be given to prosecutor and counsel of accused, and secondly, reasons are to be recorded in support of conclusion that charge is groundless or that there is not probability of accused being convicted. [P. 1377] E
1994 SCMR 798 relied. PLD 1960 Lah 140, PLD 1971 Pesh. 198 ref.
(iv) Criminal Procedure Code, 1898, (Act V of 1898)-
—S. 417-(2)-Appeal against acquittal-Appellant prejured before Magistrate giving wrong address of respondents proved through documents-Witnesses appearing before testifying hearsay evidence, so much so they are interested witnesses as they are involved in civil litigation with respondents-Alleged receipts of huge payments are forged piece of documents suffering from overwritings not only in amount, words, date but also signatures of respondent are forged-Appellant omitted mention of civil suit filed against him by Respondent No. 1. on the subject matter-In the light of above, the complaint of appellant before Magistrate could not have resulted in conviction of Respondent No. 1-In the circumstances, power of acquittal exercised by Magistrate Under Section 249-A Cr. P.C. is legally sustainable-Appeal dismissed.
[Pp. 1378,1379,1380,1381 & 1384] F, G, H, I, J & L 1969 SCMR 141 ref. 1976 P Cr. L.J. 699, PLD 1958 Lah. 738,1976 P.Cr. L.J. 153., 1973 P.Cr. L.J. 370,1977 P.Cr. L.J. 422,1984 P.Cr. L.J. 2737,1977 P.Cr. L.J. 135, PLJ 1979 Cr. C. (Lah) 392 PLJ 1981 Cr. C. (Kar. 110 ref.
(v) Criminal Procedure Code, 1898, (Act V of 1898)--
—-S. 200~Delay in filing of private complaint-Although no such thing as limitation is prescribed in criminal prosecutions, but on the other hand longer a complaint is delayed lesser becomes chance of believing in its truth, more particularly when it is based upon entirely oral evidence.
[P. 1384] K PLJ 1973 Kar. 279 ref.
Mr. KB. Bhatti, Advocate for Appellant.
Mr. Farogh Naseem, Advocate for Respondent No. 1.
Mr. Abdul Sattar Kazi, A.A.G.
Date of hearing: 23.11.1995.
JUDGMENT
The instant Criminal acquittal appeal has been filed under Section 417(2) of the Criminal Procedure Code impugning the order of acquittal passed by the learned VII Extra Joint Civil Judge and First Class Magistrate, Hyderabad, dated 9.6.1994 in Compliant No. 6 of 1994 and the order passed by the learned Sessions Judge, Hyderabad, dated 5.7.1994 dismissing the Revision Petition of the appellant against the order of the learned Magistrate in revision petition No. 47 of 1994. At the date of hearing three applications were fixed by the office i.e. M.A. No. 284 of 1994 which was the main application seeking special leave to appeal under Section 417(2) Criminal Procedure Code against the orders of the learned Magistrate and the learned Sessions Judge as already pointed out above; M.A. No. 490 of 1994 being an application seeking a direction from the court to issue a warrant against the Respondent No. 1 for his production in court; M.A. No. 691 of 1994, being an application under Section 561-A of the Criminal Procedure Code containing multiple prayers to the effect that the impugned orders be set aside, retrial be ordered, bailable warrants be issued against the Respondent No. 1 and principles of natural justice be complied with.
2. I had pointed out to Mr. KB. Bhatti, the learned counsel for the applicant/appellant that the latter two applications are completely misconceived considering that no orders as prayed therein can be passed till the applicant/appellant first makes out a case in respect of the first and the main application. In relation to the second application the question of issuing any warrant against Respondent No. 1 cannot arise till such time the orders so impugned hold the field. Likewise, any direction to set aside the impugned orders as sought in the third application would amount to putting the cart before the horse as the applicant/appellant has to first make out a case with regard to the main application Mr. KB, Bhatti, the learned counsel for the applicant/appellant after some discussion ultimately conceded on this score and did not press the later two applications i.e. M.A. No. 490/95 and M.A. No. 691/95, which are accordingly dismissed as withdrawn.
In order to decide M.A. No. 284 of 1984 i.e. the main application/appeal it would be pertinent to first recapitulate the facts as stated by the respective sides. The applicant/appellant has alleged that one Mr. Harris Bashir Ahmed son of late Justice M.B. Ahmed, the Respondent No. 1, on behalf of his mother, Mrs. Rafia Ahmed and sister, Maliha and on his own behalf entered into sale agreements with the applicant/appellant for sale of agricultural land situated in Deh Daduki and Deh Behara, Taluka Tando Muhammad Khan. The two agreements were executed on 21.7.1992 and 17.8.1992, respectively. In respect of the two agreements the applicant/appellant alleged to have paid the Respondent No. 1 a sum of Rs. 3,25,000/- as advance/down payment in the presence of two witnesses at Karachi. It is also alleged by the applicant/appellant that the Respondent No. 1 in final settlement of the sale price as per the two agreements also received payments of Rs. 15,82,000/- and Rs. 9,00,000/- on 10.8.1993 and 1.1. 1994, respectively, all in cash, in a bungalow at Zeal Pak Road, SITE area, Hyderabad in the presence of witnesses. In support of his contention the applicant/appellant has attached copies of the said sale agreements dated 21.7.1992 and 17.8.1992, copy of a receipt marked as Annexure 'C' dated 15.6.1992 allegedly issued by the Respondent No. 1 for Rs. 1,00,000/-, a copy of pay order/cheque No. D/0833426/0033/24 dated 27.7.1992 issued by Habib Bank Limited, Hassanpur Sector, District Hyderabad Branch in favour of Respondent No. 1 of an amount of Rs. 1,75,000/-, and receipt of Rs. 9,00,OOO/- (marked as Annexure 'D') issued by Respondent No. 1 dated 1.1.1994. It is alleged by the applicant/appellant that the Respondent No. 1while receiving the payments of Rs. 15,82,000/- and Rs. 9,00,000/- had stated to him that he would hold these payments as "amanats" of the applicant/appellant. Therefore, it is alleged by the applicant/appellant that he visited the Respondent No. 1 twice, and asked him to transfer the r agricultural land while the Respondents No. 1 refused to effect the transfer. It was in response to this alleged refusal that the applicant filed a direct complaint with the learned Magistrate on 28.2.1994 under section 406/420 read with Section 200 of the Criminal Procedure Code. On 2.3.1994 the learned Magistrate recorded the statement of the complainant under Section 200 Criminal Procedure Code, while directing him to produce all the prosecution witnesses on the next date. The matter was adjourned to 7.3.1994, on which date the complainant alongwith his counsel and two witnesses viz, Khair Muhammad and Sahib Dino attended and theirstatements were recorded under Section 202 of the Criminal Procedure Code. Subsequently, the learned Magistrate took cognizance of the matter and issued warrant to Respondent No. 1 who caused a voluntary attendance in Court alongwith his counsel on 25.4.1994, while moving applications for grant of bail as also for acquittal under Section 249-A of the Criminal Procedure Code on that date. The Respondent No. 1 was released on bail, while notice was issued to the other side in respect of the application under Section 249-A for 11.5.1994. On 11.5.1994 the applicant/appellant once again moved application for adjournment which was granted and the matter _ adjourned to 5.6.1994 as a last chance to the applicant Thereafter, on 9.6.1994 the application under Section 249-A was heard and counsel for both sides made submissions, while the learned Magistrate acquitted the Respondent No. 1 by allowing his application under Section 249-A,Aggrieved against the decision of the learned trial court the applicant/ appellant moved a Revision under Section 436 and 439-A of the Criminal Procedure Code before the Sessions Judge Hyderabad which was dismissed on ground as being not maintainable in view of the provisions of Sectio 439(5) of the Criminal Procedure Code, hence the present appeal/ application.
4. Mr. KB. Bhatti in support of his case has taken the preliminary objection that since the Respondent No. 1 is stated to be the attorney of his mother and sister in respect of the sale agreements in question and since no power of attorney to that effect has been filed by the Respondent No. 1 to confirm that he is in fact the lawfully appointed attorney of by his mother and sister, Mr. Muhammad Farogh Naseem, the counsel for Respondent No. 1 cannot cause appearance and cannot be allowed to defend Respondent No. 1 and also the Respondent No.l cannot be allowed to put up a defence. In support of this novel contention which I find of no legal relevance, Mr. Bhatti has placed reliance upon Shaikh Muhammad Shafique v. Humayun Kabir, PLJ 1981 Karachi 302. I have perused this decision which only holds that where an attorney has no power to admit or compromise a claim he cannot authorize an advocate to compromise the matter for the reason that adelegatee can only delegate the power which has been conferred upon him, rovided he has been authorized to do so. The case cited by Mr. Bhatti does not at all advance the contention propounded by him. This contention is completely misconceived. Just because the Respondent No. 1 has not filed in Court the power of attorney authorizing him to dispose of lands of his mother and sister it can hardly warrant debarring him and his counsel to put up a defence. In fact, the contention of Mr. Bhatti is patently opposed to the principles of natural justice and at the same time does not find place in any exposition of law or statute. Before parting with this particular issue, it may be pointed out that Mr. Muhammad Farogh Naseem, the learhed counsel for Respondent No. 1, had invited my attention to the fact that whether or not the Respondent No. 1 enjoys the power of-attorney from his mother and sister is not in dispute or issue and is completely irrelevant to the disposal of the present appeal for the simple reason that the applicant/appellant has himself impleaded Mr. Harris M.B. Ahmed asRespondent No. 1 in the memo of appeal, all of his allegations are directed against him, the complaint before the Magistrate itself had involved him, while it is a general principle of law that all parties to pleadings have the right of defence and audience. The contention/objection of Mr. K.B. Bhattiaccordingly is devoid of any legal force and deserves summary rejection.
5. The next objection raised by Mr. KB. Bhatti as regards the impugned order passed by the learned Magistrate is that a fair opportunity was not given to the applicant/appellant or his counsel to contest the application under Section 249-A of the Criminal Procedure Code moved by the Respondent No. 1. In support of this contention, Mr. Bhatti has placed reliance upon Kala v. Sarkar, PLD 1969 AJK 65, where it has been held that when the date of hearing falls on a public holiday, parties as of right are entitled to a fresh notice of hearing and any ex-parte order so passed prejudicing the absentee parly would be illegal. I have perused the record
and proceedings requisitioned from the Magistrate's court which confirm that time was repeatedly sought on 11.5.1994, and 5.6.1994 by the applicant/appellant which was duly granted by the learned Magistrate. In fact on 5.6.1994 while granting adjournment on the application moved by the applicant/appellant through one Mr. Zawar All Chandio, the learned Magistrate issued instructions that the next date i.e. 9.6.1994 shall be the last chance of hearing. On the next date of hearing i.e. 9.6.1994, the applicant/appellant and his counsel were all present while so were the Respondent No.'l and his counsel. The impugned order dated 9.6.1994 records the presence of Haji G. Mustafa Khan Gopang, Advocate, for the complainant (i.e. the applicant/appellant) as also the submissions made by him. Also the diary sheet in the trial court's file of 9.6.1994 from the records and proceedings requisitioned confirms the presence of the applicant/ appellant and his counsel as the same reads as follows :-
and proceedings requisitioned from the Magistrate's court which confirm that time was repeatedly sought on 11.5.1994, and 5.6.1994 by the applicant/appellant which was duly granted by the learned Magistrate. In fact on 5.6.1994 while granting adjournment on the application moved by the applicant/appellant through one Mr. Zawar All Chandio, the learned Magistrate issued instructions that the next date i.e. 9.6.1994 shall be the last chance of hearing. On the next date of hearing i.e. 9.6.1994, the applicant/appellant and his counsel were all present while so were the Respondent No.'l and his counsel. The impugned order dated 9.6.1994 records the presence of Haji G. Mustafa Khan Gopang, Advocate, for the complainant (i.e. the applicant/appellant) as also the submissions made by him. Also the diary sheet in the trial court's file of 9.6.1994 from the records and proceedings requisitioned confirms the presence of the applicant/ appellant and his counsel as the same reads as follows :-
"9.6.1994. Complainant and his counsel present Accused and his counsel present. Order announced accused acquitted under Section 249-A Criminal Procedure Code.
Sd/-JUDGE"
From the above there is little doubt that the applicant/appellant and his counsel were present at the time of hearing before the trial court and to say that the application under Section 249-A had been allowed ex parte or that the applicant/appellant was condemned unheard is, therefore, thoroughly refuted by the record itself. Mr. K.B. Bhatti has stated that there is a violation of natural justice since the counsel at the original stage, Mr. Haji Mustafa Gopang, was not competent enough and the court ought not to have allowed him to proceed with the matter. Mr. Bhatti stated that since the applicant/appellant is an illiterate man he could not decipher between competent and incompetent lawyers. Mr. Bhatti, however, has admitted that at the time of hearing of application under Section 249-A Mr. Gopang had appeared and made submissions. Mr. Bhatti has further stated that before the hearing on 9.6.1994, his client, the applicant/appellant, was not inclined to allow Mr. Gopang to make submissions and it was only when Mr. Gopang had made an attempt to convince the applicant/appellant that he would do a good job that the applicant/appellant allowed him to appear. Mr. Farogh Naseem, counsel for the Respondent No. 1 has vehemently opposed this plea of violation of natural justice advanced by the appellant/applicant and stated that the argument of Mr. Bhatti amounts to an abuse of the process of court Also allegations and averments made by Mr. K.B. Bhatti in respect of competence of Mr. Gopang behind his back were wholly uncalled for. I have perused the arguments on this issue and carefully examined the record. There is no breach or violation of the principles of natural justice. The appellant/applicant was not condemned unheard. On the contrary, the diary sheet dated 9.6.1994 as also the order of the learned Magistrate of even date confirms beyond any doubt that the appellant/applicant and his counsel were both present and at the time of hearing of the application under Sectio 249-A they had been given full opportunity to advance submissions and arguments. There is also no exparteorder and the ruling cited by Mr. Bhatti reported as PLD 1969 AJ&K 65 is hardly applicable. While rejecting Mr. Bhatti's submission on this point I am also inclined to agree with the learned counsel for the respondent No. 1 that the contention of violation of natural justice as raised by Mr. Bhatti amounts to an abuse of the process of court in the obtaining circumstances when the entire record, proceedings and order confirm that there was no such violation and even when Mr. Bhattisubsequently agreed that there was no ex parie order and that Mr. Gopang and the appellant/applicant had duly caused appearance and were heard in court.
6. The next argument of Mr. K.B. Bhatti is that the learned Magistrate while exercising power under Section 249-A Criminal Procedure Code had materially erred inasmuch as that only two out of the six witnesses of the complainant i.e. applicant/appellant, had been examined and accordingly the entire proceedings before the Magistrate stood vitiated and the Court ought to direct a retrial. In support of his contention Mr. Bhatti has placed reliance upon The State v. BarkatAli,PLD 1960 Lahore 140 and The State v. Ghulam Muhammad, PLD 1971 Peshawar 198. Both these decisions are authority for the proposition that failure to examine all prosecution witnesses unless given up by the prosecution would vitiate the trial. Mr. Farogh Naseem has pointed out that these two cases are only relevant where the trial Judge allows the entire trial to proceed and thereafter passes orders. According to learned counsel for the Respondent No. 1 these decisions are not applicable to orders passed in the exercise of power under Section 249-A of the Criminal Procedure Code which itself states that the accused can be acquitted at any stage of the trial, provided that the requisite conditions are met and there is no illegality if the Magistrate has not examined all the witnesses. The contention of Mr. Farogh Naseem in this regard is also correct. I have been able to lay my hands on a recent decision of the Hon'ble Supreme Court of Pakistan reported as The State vs. Asif Alt Zardarl, 1994 SCMR 798 where writing for the Court Sajjad Ali Shah, J. (as he then was) has very extensively elaborated the requirements of Section 249-A Cr. P.C. According to the learned Judge an application under Section 249-A of the Criminal Procedure Code can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application has to be filed after evidence of all the witnesses is recorded. The only requirements to be fulfilled are*first, that hearing is to be given to the prosecutor and the counsel of the accused and secondly, reasons are to be recorded in support of the conclusion that the charge is groundless or that there is no probability of the accused being convicted. In view of this clear pronouncement by the Hon'ble Supreme Court I reject the argument advanced by Mr. Bhatti that failure of the learned Magistrate to examine all witnesses has stained the impugned order of acquittal with illegality. The contention of Mr. Farogh Naseem that the two decisions relied upon by Mr. Bhatti are inapplicable to proceedings under Section 249-A whereunder a Magistrate can acquit at any stage provided other requirements are met, is correct
7. After dealing with the objections and issues as above I feel that unless the facts of the instant appeal are examined in depth on merits no justice could be done. I would accordingly now examine the case on merits.
8. Mr. Farogh Naseem the learned counsel for the Respondent No. 1 has invited my attention to many facts of the case. Accordingly to the learned counsel the entire attempt by the applicant/appellant is to illegally grab land and to avoid the operation of the forfeiture clauses contained in the sale agreements. The learned counsel has invited my attention to the statement of the applicant/appellant under Section 200 of the Criminal Procedure Code recorded by the learned Magistrate wherein he has stated that the Respondent No. 1, his mother and sister reside in Harrisabad in Tando Muhammad Khan. This statement is false and palpably incorrect and appears to have been designed to fraudulently manipulate the territorial jurisdiction of the court at Hyderabad. It is a fact which even Mr. Bhattiadmitted before me during the course of arguments on merits and which is borne out from the sale agreements and the certificate of the councillor filed before the Magistrate as also from the record pertaining to service of notices to Respondent No. 1, that he (Respondent No. 1) resides permanently in Defence Housing Authority, Karachi. Moreover, the fact that the sale agreements were executed in Karachi to which the applicant/appellant is admittedly a signatory and that according to his own statement he had visited the Respondent's house in Karachi, leaves no iota of doubt that the applicant/appellant had perjured before the learned Magistrate while givinghis statement under Section 200 Criminal Procedure Code in relation to the residence of Respondent No. 1.
9. Regarding the alleged receipt of payments in Hyderabad by the Respondent No. 1, the learned counsel for the Respondent No. 1 had assailed the same on the following scores :-
(i) in clauses 6 of both the sale agreements it has been clearly spelt out that all payments were to be made by the applicant/appellant at Karachi at the residence of Respondent No. 1:
(ii) the witnesses whose statements have been recorded before the Magistrate under Section 202 Criminal Procedure Code i.e. Khair Muhammad and Sahib Dino are all interested persons and parties with whom the Respondent No. 1 is fdre&dy la earn? titigstioa ia FSC No. 44 of J 294 and F.S.C. 53 of 1994 before the Senior Civil Judge, Tando Muhammad Khan:
(iii) Moreover, both these witnesses in their statements under Section 202 of the Criminal Procedure Code testified hearsay evidence as in these statements the witnesses have expressed that they have learnt "that the Respondent No. 1 is committing fraud with the applicant/appellant." Admittedly, the personal knowledge of the witnesses in this regard are found to be completely lacking.
(iv) The statement of the appellant/applicant under Section 200 Criminal Procedure Code as also of the witnesses under Section 202, of the Criminal Procedure Code and the memo of complaint filed before the Magistrate only specify that some payments were made in a bungalow on Zeal Pak Road, SITE area, Hyderabad. It is very strange that nowhere the actual house/bungalow has been pointed out/identified:
(v) The receipt attached as annexure 'C' of Rs. 1,00,000/-dated 15.6.1992 proves on its very face that it is completely forged as the same is dated 15.6.1992 well before the said agreements were executed and no confirmation thereof exists in the agreements:
(vi) The other alleged receipt of Rs. 9,00,000/- dated 1.1.1994 is a forged document which suffers from over-writing and even the signatures of the Respondents No. 1 thereon when compared with the signatures on the sale agreements predominantly suggests it to be forged.
(vii) It is very hard to believe it even by commonsense that cash of Rs. 15,82,000/- and Rs. 9,00,000/- has been taken by appellant/applicant to an unidentified bungalow at Zeal Pak. Road, SITE area and the payment received by the Respondent No. 1 there, contrary to the Agreements, leaving out no payment to be made before the Registrar without the exchange of any document/title.
10. The above contentions of the learned counsel for the Respondent No. 1 carry a lot of force. Admittedly clauses 6 of both the sale agreements clearly spell out that the balance payments are to be made at the residence of the Respondent No. 1 at Karachi. Furthermore, after examining the statements of the witnesses under Section 202 of the Criminal Procedure Cade there is tittle doubt that the averments made therein to the effect that these witnesses have learnt that the Respondent No. 1 is playing fraud on the applicant/appellant are clearly hearsay and the same are thus inadmissible. Also the witnesses are interested persons considering that they 'have been co-parties with the applicant/appellant m Cm! disputes wi'tfi tfie Respondent No. 1 over agricultural properly before the Senior Civil Judge, Tando Muhammad Khan. Little or no probative value can be placed upon such statements of interested persons. In addition to the above, the said witnesses in their statements under Section 202 Cr. P.C. as also thehearsay evidence as in these statements the witnesses have expressed that they have learnt "that the Respondent No. 1 is committing fraud with the applicant/appellant." Admittedly, the personal knowledge of the witnesses in this regard are found to be completely lacking.
(iv) The statement of the appellant/applicant under Section 200 Criminal Procedure Code as also of the witnesses under Section 202, of the Criminal Procedure Code and the memo of complaint filed before the Magistrate only specify that some payments were made in a bungalow on Zeal Pak Road, SITE area, Hyderabad. It is very strange that nowhere the actual house/bungalow has been pointed out/identified:
(v) The receipt attached as annexure 'C* of Rs. l.OO.OOO/-dated 15.6.1992 proves on its very face that it is completely forged as the same is dated 15.6.1992 well before the said agreements were executed and no confirmation thereof exists in the agreements:
(vi) The other alleged receipt of Rs. 9,00,000/- dated 1.1.1994 is a forged document which suffers from over-writing and even the signatures of the Respondents No. 1 thereon when compared with the signatures on the sale agreements predominantly suggests it to be forged.
(vii) It is very hard to believe it even by commonsense that cash of Rs. 15,82,000/- and Rs. 9,00,000/- has been taken by appellant/applicant to an unidentified bungalow at Zeal Pak. Road, SITE area and the payment received by the Respondent No. 1 there, contrary to the Agreements, leaving out no payment to be made before the Registrar without the exchange of any document/title.
10. The above contentions of the learned counsel for the Respondent No. 1 carry a lot of force. Admittedly clauses 6 of both the sale agreements clearly spell out that the balance payments are to be made at the residence of the Respondent No. 1 at Karachi. Furthermore, after examining the statements of the witnesses under Section 202 of the Criminal Procedure Code there is little doubt that the averments made therein to the effect that these witnesses have learnt that the Respondent No. 1 is playing fraud on the applicant/appellant are clearly hearsay and the same are thus inadmissible. Also the witnesses are interested persons considering that they 'have been co-parties with the applicant/appellant in Civil disputes with the Respondent No. 1 over agricultural properly before the Senior Civil Judge, Tando Muhammad Khan. Little or no probative value can be placed upon such statements of interested persons. In addition to the above, the said witnesses in their statements under Section 202 Cr. P.C. as also the appellant/applicant in his statement under Section 200 Cr. P.C. do not specify the exact number of the house at Hyderabad where such payments have been allegedly made. Prime facie this all appears to be a concocted story. Also the memo of the complaint filed before the trial Court does not specify the exact number of the house. It is also correct that the receipt of Rs. 1,00,000/- annexed as annexure 'C' dated 15.6.1992 is either forged or cannot relate to the sale agreements in issue which are dated 21.7.1992 and 17.8.1992, the receipt being prior in time to the said agreements which are also silent about such a payment of Rs. 1,00,000/-. Furthermore, annexure C-l which is a pay order/cheque dated 20.7.1992 of Rs. 1,75,000/- hardly advances the case of the appellant/applicant The sale agreement dated 2-1.7.1992 specifies a down payment of Rs. 2,75,000/- which is admitted by Respondent No. 1 The said cheque/pay order is only part of that down payment.
11. The allegation of the appellant/applicant is that two payments were alleged made to the Respondent No. 1 at Hyderabad. The first alleged payment was made on 10.8.1993 of the tune of Rs. 15,82,000/-. In respect of this payment the appellant/applicant himself at para 7 of the memo of appeal/application admits that he cannot prove the fact that such payment was made "except the will of God Almighty." As regards the second alleged payment of Rs. 9,00,000/- dated 1.1.1994 a receipt is attached as annexure 'D'. I have compared the signatures of the Respondents No. 1 appearing in that receipt with that of his signatures in the sale agreements. The learned counsel for the Respondent No. 1 at the time of hearing had also furnished enlarged photostat copies of actual signatures appearing in the said sale agreements and the enlarged copy of the signature in the receipt dated 1.1.1994. The said enlarged copies were also submitted as annexure B-l and B-2 at page 107 in the record and proceedings of the trial Court. After comparing the two there is little doubt that the alleged receipt of Rs. 9,00,000/- is a forged piece of document suffering from over-writing not only in the amount, words, date but also the signature of the Respondent No. 1 is undoubtedly forged, suffers from the same defect of over-writing and the forgery is more than apparent The two signatures do not tally in any manner. In the light of this there is substantial merit in the argument of Mr. Farogh Naseem that the entire idea behind the instant appeal or the earlier criminal proceedings before the trial Court and the Sessions Judge is toavoid the operation of the forfeiture clauses contained in ttye sale agreements and to illegally grab land. It has been pointed out by the learned counsel for Respondent No. 1 that a Civil Suit No. 699 of 1994 has been instituted by the Respondent No. 1 against the present appellant/apnlicant in the Court of Vlllth Senior Civil Judge Karachi (South) seeking a declaration to the effect that due to non-payment of the balance amounts/instalments the down payments stand forfeited and the suit also pertains to the same sale agreements and agricultural properties. The appellant/applicant in response h^s filed a written statement, affidavits and applications in the said suit. The applicant/appellant in the instant appeal has omitted mention of the civil litigation on the same subject matter which leaves me no option but toobserve that he has approached this Court with unclean hands while suppressing materials facts. If there is any authority needed for the said proposition it is the case of Abdul Rashid v. Pakistan reported in 1969 SCMR 141.
12. The upshot of the above discussion is that, there is little doubt that the complaint made by the appellant/applicant before the trial Court and the oral and documentary evidence produced therein could not have resulted in conviction of Respondent No. 1 had accordingly the power of acquittal exercised by the Magistrate under Section 249-A is legally sustainable.
13. Mr. Farogh Naseem, the learned counsel for Respondent No. 1 has also placed reliance upon a number of decided cases for the point that even if the allegations made by the appellant/applicant are found to be correct they at best disclose a case of civil nature and no case of criminal liability could ensue. In this regard the learned counsel has placed reliance upon :-
(i) Muhammad Sadiq vs. Muhammad All (1976 P.Cr. L.J. 699).
(ii) Muhammad Osman v. The State (1976 P.L.Cr. L.J. (153).
(iii) ZafarNiazi v. Riazuddin (PLD 1958 Lahore 738).
(iv) Sadruddin v. Abdul Khaliq (1973 P.Cr. L.J. 370).
(v) Sher Muhammad v. The State (1977 P.Cr. L.J. 422).
(vi) Abdul Ghani v. Kandero (1977 P.Cr. L.J. 135).
(vii) M/s Kashmir v. Ehsan Khawaja (1984 P.Cr. L.J. 2737).
(vm)Abdul Karim v. Omar Hayat (PLJ 1979 Crim. Cases Lah. 392).
(ix) Aba Umar Shaikh v. Abdul Rehman Shah (PLJ 1981 Cr. Cases Karachi 110).
In the first case Muhammad Sadiq v. Muhammad Ali, the Lahore High Court was of the view that where the complainant claimed payment of sale price in relation to a buffalo sold by him the dispute was of a civil nature. Accordingly, criminal proceedings were quashed. In the second case Muhammad Usman v. The State it was held that mere refusal to payable money would not constitute an offence under Section 420 of the P.P.C. Once again the proceedings were quashed. In the third case referred i.e. Zafar Niazi v. Riazuddin the complainant's grievance was that he had submitted a correct solution of a cross-word puzzle and was thus entitled to a prize money of Rs. 8,000/-, but since he was not given the prize he lodged a complaint under Section 420 of the P.P.C. against the organizers of the puzzle. It was held that the dispute between the parties depended upon the question whether a correct solution had been submitted by the complainant and thus the matter was of a purely civil nature in relation to which the complainant could only claimed a remedy in a civil court. In the fourth case Sadruddin v. Abdul Khaliq the court was of the view the once buffaloes were entrusted to the accused for delivery to some one else and later the complainant agreed to receive a price of the buffaloes from the accused, theentrustment stood converted into a sale and the dispute only remained as to recovery of money which was purely of a civil nature. Proceedings were quashed accordingly. In the fifth case i.e. Sher Muhammad v. The State the court was of the view that where bicycles were taken for hire and not returned subsequently, the remedy available was only under civil law and not criminal law. Accordingly, the conviction and sentence under Section 420 of the P.P.C. were set aside, In the sixth case reported as Abdul Ghani v. Kandero the petitioner entered into an agreement with the Respondent for sale of his buffaloes and when possession of the buffaloes was parted with, the petitioners refused to pay the sale proceeds. In these circumstances it was held that the matter pertained to civil liability for rendition of accounts and a suit for recovery of money was the only proper remedy. Accordingly, criminal proceedings were quashed. In the seventh case i.e, M/s Ka&hmir v.Ehsan Khawqja a Division Bench of this court was of the view that the matter was of a civil dispute and the accused was not guilty of offence of criminal misappropriation, while the entire case was brought against him to pressurize him so that he could accede to the complainant's demand. In the eighth case, Abdul Karim v. Omar Hayat a criminal case under Section 406 and 420 of the P.P.C. was registered against the petitioner for not completing the contract to sell machinery to the Respondent It was held that the case was basically of civil nature and the petitioner was unnecessarily harassed in criminal litigation over a simple breach of contract. Accordingly, proceedings under Section 406 and 420 of the P.P.C. were quashed. In the last case referred to by Mr. Farogh Naseem learned counsel for the respondent No. 1 i.e. Aba Omar Shaikh v. Abdul Rehman Shah a complaint was filed before the Magistrate regarding a credit of Rs. 1,500/- in a transaction of cattle , purchase. It was held that the matter was of civil nature and the proceedings were accordingly quashed.
14. The decisions cited to the bar by Mr. Farogh Naseem advance the case of Respondent No. 1. Admittedly, the applicant/appellant and the Respondent No. 1 have executed sale agreements in respect of agricultural land. Even if it is assumed that the Respondent No. 1 had received the two payments of Rs. 15,82,000/- and Rs. 9,00,000/- on 10.8.1993 and 1.1.1994 respectively at Hyderabad, the same were admittedly in relation to sale of property reflecting balance or instalments of payments. To say thjit these payments were "amanats" or entrustments would not only be incorrect but inconsistent with the pleas advanced by the applicant/appellant at the time of hearing as also in the complaint before the trial court, and the statements recorded in pursuance thereof and the memo of the instant appeal. The applicant/appellant has unequivocally stated that these payments reflected the selling price in pursuance of the two sale agreements. To say that thesepayments were "amanats"/ entrustments and sale proceeds would amount to blowing hot and cold at the same time. Even if these payments were "amanats" at the first instance they were converted into sale proceeds the moment applicant/appellant started to demand transfer/mutation of land on the basis of these payments, in view whereof these payments reflect nothing but contractual considerations, if at all such payments have been made. Thus the alleged payments can by no means be termed as entrustments and the matter in essentially of a civil nature. Mr. Farogh Naseem has further placed reliance upon the case of Haider Ali v. Khuda Dinoreported as (1976 P.Cr. L.J. 195) for the authority that entrustment of property in the form of "amanats" cannot be found till the complainant categorically specifies thepurpose for which the entrustment or "amanat" is made. In the present case no such purpose for entrustment has been spelt out Para 5 of the complaint filed before the trial court only states the factum that entrustment has been made but the purpose thereof remained unspecified. Even if any purpose for the entrustment is squeezed from the facts it would be the purpose as a sale consideration in which case the matter would once again be of a civil liability. Mr. K.B. Bhatti while stating that the matter is not of a civil nature has relied upon :-
(i) Abdul Latifv. The Crown (PLD 1952 Lahore 648).
(ii) Emperor v. Debendra Prosad (36 Calcutta 573).
(iii) In re Ventaka GuruNatha Sudri (AIR 1923 Madras 597).
In the first case i.e. Abdul Latifv. The Crown a. learned single Judge of the Lahore High Court had observed that where no evidence of misappropriation or conversion was available and the accused person was under an obligation, in relation to the money in question to deal with it in a particular way, the court cannot reach any conclusion to the effect that the accused did not fulfil his obligation upon mere presumption, and it would be the duty of the prosecution to establish, by such evidence as may be available, that in fact the accused was guilty of contravening his duty in respect of the particular sum in question. In the second case i.e. Emperor v. Debendra Prosad, on a charge against the accused of cheating by falsely representing that he was the Dewan of the estate and could procure for the complainant'sappointment to the vacant post of manager to the estate, and thereby obtained a sum of money as a pretended security deposit, evidence of instances of similar but unconnected transactions with other persons, before and after the date of offence charged was held to be admissible. In the third case In re : Ventaka Guru Natha Sudri,it was held that a breach of trust in respect of one's own property pledged with another was quite possible. These three cases cited by Mr. KB. Bhatti do not have any bearing on the present case and do not in any manner advance the case of the applicant/appellant. There is thus little doubt that the orders of the learned trial Court as also the learned Sessions Judge are legally sound and call for no interference. One of the main objects of Section 200 of the Criminal Procedure Code is to protect the public against false, frivolous or vexatious complaints filed I criminal courts and the Magistrate ought not to lightly accept written complaints and proceed to issue processes unless they have thoroughly sifted the allegations made against the accused and is satisfied that a prima facie case has been made out against those who are accused of criminal offences. (See Hashim Haji Sharif v. Mir Khan Jan, PLD 1950 Baluchistan 7). I accordingly hold that at best the case/dispute between the parties is of a civil nature and the provisions of criminal law are incorrectly invoked by the applicant/appellant.
15. My attention has been invited by Mr. KB. Bhatti to the order passed by the learned trial court dated 9.6.1994 wherein at para 2 it has been stated that notice was issued to the prosecution on 25.5.1994 for arguments on 11.5.1995. Mr. Bhatti has argued that this is a physical impossibility as notices cannot be issued for arguments on a back date. The learned counsel has tried to convince me that this would confirm the mala fide nature of the order passed by the learned Magistrate. On the other hand Mr. Farogh Naseem the learned counsel for Respondent No. 1 has invited my attention to the fact that refer to the date 25.5.1994 in the impugned order is nothing but a typographical error and the same should be read as 25.4.1994. I have examined the contention of the learned counsel for respondent No. 1 which is correct in the light of the diary she in the record and proceedings of the trial court. The date is to be read as 25.4.1994 and not 25.5.1994. On grounds of a mere typographical error it cannot be held that the entire order illegal, bad or even mala fide. The mistake is an honest typographical having no bearing on the merits of the case which I hereby rectify.
16. Before finally parting with the judgment another is warrants mention. The applicant/appellant in his complaint has stated that on 31.1.1994 it was allegedly made clear by the Respondent No. 1 that he would not be transferring the properties in issue. The applicant/appellant waited and it was only on 28.2.1994 that he lodged a direct complaint under Section 200 of the Criminal Procedure Code. Mr. Farogh Naseem has cited the decision of Khadija v. The State (PLJ 1973 Karachi 279) wherein Tufail All A. Rehman, CJ. (as he then was) had observed that although no such thing as a limitation in prescribed in criminal prosecutions, but on the other hand the longer a complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based upon entirely oral evidence. Mr Farogh Naseem has contended that through this decision the general principle of criminal law that delay in registering a case renders that case questionable, has been extended to criminal complaints under Section 200 of the Criminal Procedure Code as well. The contention is correct and no explanation has been offered to account for the delay between 31.1.1994 and 28.2.1994. On this score also the complaint before the learned Magistrate becomes seriously questionable.
17. In the result the appeal/application is dismissed in limine. (M.A.A.) Appeal dismissed in limine.
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