JAVAID HAMID Versus HASSAN JAN

This petition has been filed under section 561‑A, Cr.P.C for quashment of proceedings in a complaint under section 419/420, P.P.C. pending in the Court of the area Magistrate lodged by respondent No.l against the petitioner and respondent No. 2:

2. The contents of the complaint are that the complainant alleges to be the owner of a marble machine on Warsak‑ Peshawar Road; that on 22‑2‑1982 the petitioner (arraye4 as accused No.l) and respondent No.2 representing themselves to be the dealers of a certain firm known as "Salica Saw" desired to obtain the marble machine on rent; that during this negotiation respondent No.l posed himself to W an influential businessman while respondent No. 2 as his agent and ultimately the rent of the premises was settled at Rs.2,500 P.M. and accordingly the machine started its function from 22nd February, 1982. However, when the complainant pressed his demand for payment of rent and Rs.15,000 as advance money, then accused No.1 (petitioner) giving himself to be affluent businessman promised payment on a future date and thus defrauded and deceived the complainant in payment of the liability. In nutshell it was stated that ultimately the accused‑respondents scarced themselves for some time and thus avoided payment. This complaint was presented in Court as far back as 10‑9‑1985 and it was marked to the SHO for inquiry under section 202, Cr.P.C. On receipt of positive report from the police, the complaint was put in Court on 21‑6‑1986 and till riling of the. instant petition in this Court on 15‑1‑1991 for about five years, no evidence has been recorded in it. It was submitted that an application under section 249‑A, Cr.P.C. was also presented before the trial Court but that was dismissed.

3. The learned counsel for the petitioner argued that the allegations made in the complaint do not at all constitute a criminal liability but at the most disclose a civil obligation and to continue the proceedings in the complaint would amount to abuse of the ‑process of the Court. The learned counsel appearing for the State agreed with this contention and submitted that he had no objection to the acceptance of the petition. However, the learned Advocate for the complainant‑respondent No.l controverted these submissions as he was of the view that the accusations in the complaint do constitute the offence under section 419/420, P.P.C. and that at this stage when no evidence has been recorded in the trial Court, it will be premature to express any opinion on the merits of the case which would amount to stifling the prosecution.

4. It is a salutary principle in criminal administration of justice that if on consideration of the facts patent on record no crime can be formed then to allow the proceedings to continue will amount to perpetuating the illegality. In such a case the stage of the proceedings in the case would not be material as further continuance of the proceedings would amount to further abuse of the process of the Court. In the case in hand, the wrong which has been attributed to the petitioner is non‑payment of rent and advance money in spite of the assurance and promise to pay. Although the scribe of the complaint has tactfully tried to introduce such words as: in order to shape its form to include the ingredients of the alleged offence under section 419/420, F.P.C., but this form cannot change the substance of the complaint which is non‑fulfilment of the obligation to pay the rent etc. If such assertions are allowed to form basis of criminal complaint, then on this criteria the breach of almost all the contractual. liabilities can be made foundation for criminal proceedings. This, however, cannot be permitted and the power of this Court available under section 561, Cr.P.C. can be invoked to undo these pressure ? tactics to bring a person to Criminal Court for non‑fulfilment of civil obligations.

5. Keeping in view the contents of the complaint it can easily be inferred that no offence can be constituted against the petitioner, therefore, it will be futile to allow the proceedings as no better result can be achieved. Accordingly, invoking the authority under section 561‑A Cr.P.C., the proceedings in the complaint are hereby quashed.

N.H.Q./1202/P ??????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.