ASIM FAROOQUI Versus MIRZA DILDAR HUSSAIN

This is a petition under section 561‑A, Cr. P. C. seeking quashment of the proceedings pending against the petitioner in the Court of A. C. M. XVIII, Karachi, under sections 420 and 406, P. P. C.

2. The brief facts of the case are that the applicant is nephew of the complainant Mirza Dildar Hussain, respondent No. 1. He is also nephew of the respondent No. 2 who is an accused in the complaint filed by the respondent No. 1, on 24.6‑65, the respondent No. 1 executed a power of attorney in favour of the petitioner whereby the petitioner was authorized to look after his lands situated in Sukkur. A copy of the power of attorney has been filed as Annexure 'A' with the petition. The petitioner looked after the lands of respondent No. 1 for sometime and followed the directions given to him from time to time in connection with the management of the lands. Some of the lands were also sold by him and according to the petitioner the sale proceeds were remitted to the respondent No.1. He has further urged that after some time. a family dispute arose between the parties as a result of which the respondent No. 1 filed a complaint in the Court of A. C. M. XVIII, Karachi, on 20‑9‑1973 under sections 420 and 406, P. P. C. read with suction 34, P, P, C. In this complaint the respondent No. 2 was also arrayed as an accused besides the petitioner. The main allegations in the complaint are that the power of attorney dated 24‑6‑1965 was executed in favour of the petitioner by the respondent No. 1 on his assurance that he would look after the lands and would render accounts regularly but despite repeated demands he did not render the accounts as such the respondent No. I got suspicious about the intentions of the petitioner and he cancelled the power of attorney through a notice dated 13‑7‑1973. finally called upon him to refer accounts and return the documents pertaining to the lands which wore in his possession but the petitioner refused to render the accounts. On enquiries he learnt that the petitioner and respondent No. 2 in collusion and collaboration with each other had misappropriated the proceeds of the lands and had thereby caused uncalled for loss to the respondent No. 1.

3. The contentions of the learned counsel for the petitioner are that: (i) at the most cause of action fur tiling a civil suit for rendition of accounts arose to the respondent No. 1 against the petitioner and respondent No. 2: and (ii) the petitioner being a resident of Hyderabad the Courts ac Karachi had no territorial jurisdiction to try the case within the meaning; of section 177, P. P. C.

4. Dealing with the first contention of the learned counsel for the petitioner, I am of the view that complaint itself does not disclose any criminal offence. The power of attorney was given to the petitioner in 1965 and after that till the cancellation of power of attorney in 1973 the petitioner had been managing the lands. During this period he sent Rs. 1,500 on 30‑1‑1971 and Rs. 2,000 on 24‑6-1972 to Mirza Zawar Hussain who accepted these amounts. As Mirza Zawar Hussain was not satisfied with the amounts remitted to him by the petitioner and he somehow felt that the yield of the lands was much higher chart what was shown to him by the petitioner, therefore he demanded rendition of accounts. For sometime he persisted on the rendition of the accounts and on the alleged refusal of the petitioner tea render accounts to the respondent No.1 and also to return the documents pertaining to the lands he filed the instant complaint instead of filing a suit for rendition of accounts and recovery of the money allegedly due to him from the petitioner. It is therefore obvious that by instituting a criminal complaint the respondent No.1 has tried to convert the civil proceedings into criminal proceedings only with a view to pressurize the petitioner to accept his terms. The complaint itself dues not disclose any ingredients of the offences under sections 420 and 406, P. P. C, Mr. Manzoor Hussain the learned counsel appearing for the State concedes that the case was purely of the civil nature and that the respondent No. 1 has illegally tried to convert the proceedings into the proceedings of criminal nature.

5. The learned counsel appearing for the State has also invited my attention to the fact that the courts at Karachi had no jurisdiction to take cognizance of the case as the petitioner admittedly lived in Hyderabad whereas the property in dispute was situated in Sukkur. Fee has obviously 3 pressed into service the provisions of section 177, Cr. P. C. Apparently no cause of action has accrued to the petitioner within the jurisdiction of the learned Magistrate at Karachi and therefore on thin ground also the complaint was liable to be rejected by the learned trial Court.

6. For the foregoing reasons I find it a fit case for interference by this Court in exercise of power vested in it by virtue of section 561‑A; Cr. P. C 3‑he petition is accordingly allowed and the proceedings pending before the learned Magistrate against the petitioner and respondent No. 2 are hereby quashed. The bail bonds, if any, submitted by them for their appearance before the lower Court stand discharged.

Petition allowed.