MUHAMMAD IQBAL HAIDER Versus THE STATE

1. This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant under sections 420, 406, 468 and 471, P.P.C. before the A.C.M. No. V, Karachi (West).

2. The brief facts giving rise to the present application are that the applicant is a businessman and is proprietor of Messrs Five Star Tea Company North Karachi. That he was in need of some funds and therefore, contacted complainant M. Sharif son of Idoo who used to provide private loans to the needy businessmen on profit /interest, and after obtaining collateral securities. That the said M. Sharif advanced loan of Rs.1,50,000 to the applicant for a period of five months against the mortgage of plot bearing No. A-213, situated at Sector 11-D, North Karachi. That later on it was discovered that the plot in question did no, stand in the name of the applicant but was a property of some other person, and therefore, the complainant moved an application to the D.I.-G. Police Sind, at Karachi, which was forwarded to the S . P . C.I.A. on the basis of which a case was registered against the applicant on 5-2-1986. After necessary investigation the applicant was challaned. The present application is for the quashment of the above proceedings.

3. It has been contended by Mr. K.M. Nadeem that the dispute between the parties was of civil nature, and the criminal prosecution was mala fide. That the plot in question for which the applicant had executed mortgage document and general power of attorney duly registered, belongs to the applicant, and therefore, the prosecution under sections 420 and 406 was unwarranted.

4. Mr. A.K. Jatoi has contended that the plot in question does not stand in the name of the applicant and the agreement of sale was not registered, and therefore, it did not create any right in favour of the applicant. That at present prima facie case was made out against the applicant and, therefore, the application was pre-mature.

5. I have considered the contentions of the learned counsel, and have gone through the documents produced alongwith quashment application. The F.I.R. shows that the plot in question on the basis of which the applicant had obtained loan from the complainant did not stand in his name, and he had yet to prove that it was his property, prima facie the contents of F.I.R. do make out a criminal offence against the applicant. The case has not yet proceeded, and the applicant is yet to prove his bona fide title over the plot in question on the basis of which he had obtained loan. Therefore, I do not feel that there are grounds to quash the above proceedings at this stage, and the application is accordingly dismissed.

6. However, the learned trial Court is directed to examine the complainant and call the original owner of the plot in question under section 540, Cr.P.C. and after he was examined, the applicant will be entitled to move an application under section 249-A, Cr.P.C. if so ad4ised. Since the matter is pending since February, 1986, I hope that the learned trial Court will dispose of this matter expeditiously.

7. I had decided the above application on 15-10-1987 by a short order and these are the reasons for the same.

8. S.A./M-402/K Application dismissed.