BADARUDDIN vs Mehr AHMAD RAZA, ADDITIONAL SESSIONS JUDGE, JHANG

ORDER

SAJJAD ALI SHAH, J.--At the very outset we would like to point out that respondent No,1 herein is learned Additional Sessions Judge, who had disposed of Revision application and that judgment was impugned in the Writ Petition filed in the High Court. If at all it was considered fit and proper to implead him as party, in spite of the fact that he is pro forma party, then good and scrupulous draftsmanship demands that he should not have been impleaded by name but by designation or office and secondly in all fairness such pro forma respondent should have been mentioned at the end after naming of necessary respondents who contest proceedings as active parties. It would be appreciated if such lapses are avoided in future.

2. By this petition leave is sought from judgment and order of the High Court at Lahore, whereby writ petition is dismissed in which judgment of learned Additional Sessions Judge, Jhang allowing revision by reversing the order of the trial Magistrate and allowing application under section 249-A, Cr.P.C. Was challenged. It is urged on behalf of the petitioner, who is complainant in the criminal case that order allowing application under section 249-A, Cr.P.C. Was passed by the Revisional Court rather prematurely because in the trial Court stage had not reached for recording of evidence. In the circumstances trial Court had acted properly by rejecting application under section 249-A, Cr.P.C., which was allowed by Revisional Court.

3. Briefly stated the relevant facts giving rise to this petition arc that petitioner entered into a transaction for sale of his land in Tehsil Sumandari with respondent No,2 Noor Muhammad and others for Rs,1,50,000. He received Rs,85,000 as earnest money and the purchasers agreed to transfer their land to him situated in Village Khana Bhati, District Jhang in lieu of balance money. In that connection an Exchange Deed dated 22-4-1979 was executed between the parties. Petitioner claims that respondents backed out and he revoked Power of Attorney issued by him in favour of Abdul Karim by proclamation in newspaper dated 17-3-1986 but in spite of that Abdul Karim transferred land to other respondents through Mutation dated 20-12-1986.

4. In view of facts and circumstances stated above, petitioner filed F.I.R. For offences under sections 467, 468, 420, 406 and 109/34, P.P.C., in consequence of which criminal case was registered in which respondents appeared and subsequently filed application under section 249-A, Cr.P.C. On the ground that no criminal case was made out against them inasmuch as the transaction complained of, if at all, disclosed a breach of contract which was actionable on the civil side.

Learned Magistrate dismissed application on the short ground that on the day of disputed mt a :on, Power of Attorney stood cancelled, hence no ground was made out for action under section 249-A, Cr.P.C. Against this order respondentss filed Revision Application in the Sessions Court.

5. Learned Additional Sessions Judge after hearing counsel for both the parties passed a detailed judgment with discussion of case-law on relevant points. He concluded that when transaction is civil in nature and in substance breach of contract is alleged, then remedy lies in the Civil Court and not in the Criminal Court on' the charges of cheating, forgery or criminal breach of trust. In support of the proposition reliance is placed on a number of rulings including 1972 PCr.LJ 1130 (Jamot Ghulam Muhammad and others v. The State and another) and PLD 1987 Lahore 116 (Shaukat Ali v. The State). Revisional Court has also considered in detail legality of revocation of Power of Attorney in view of case-law and peculiar facts of this case and remarked that it had nexus with Exchange Deed and disputed facts surrounding these documents could be best sorted out in the Civil Court and finally feeling satisfied allowed application under section 249-A, Cr.P.C.

6. High Court has dismissed writ petition mainly on two grounds. Firstly that Revisional Court has passed proper and legal order by allowing application under section 249-A, Cr.P.C. In view of case- law and secondly writ petition is not maintainable particularly when on the same point there is final order passed by a Court of competent jurisdiction on revisional side. On the first ground learned counsel for the petitioner argued before us vehemently that opportunity should have been given to produce evidence in support of allegations of criminal nature which was not done. Perusal of section 249-A, Cr.P.C. Clearly shows that trial Magistrate is given power of acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused being convicted of any offence. Use of words "at any stage of the case" indicates intention that such order can be passed even before recording of evidence, if facts of the case are such and the Court is satisfied that no useful purpose would be served by proceedings further in the matter.

There is no dispute about the fact that ingredients of criminal offences such as, under sections 420, 406, 467, 468 and other cognate offences are similar as would appear in most cases of breach of contract. No doubt in such cases both remedies on criminal as well as civil sides are available and can be pressed into service but guidelines in the case-law show that Civil Courts be given preference and allowed to decide such disputed facts. In such circumstances it is the duty of the Criminal Court to act with circumspection and exercise power with utmost care and caution before it is pursuaded to employ its process for compelling attendance. In support reference can be made to the cases reported in 1972, PCr.LJ 1130 (Jamot Ghulam Muhammad and others v. The State and another and 1989 PCr.LJ 1883 (Khan alias Khanu and others v. The State).

6. In any case as stated above facts in each criminal case are different from the other and if the trial Court is given power to acquit at any stage of the proceedings if satisfied, then it can be said that order of acquittal can be passed by the Court without recording of evidence provided the Court is satisfied that peculiar facts of that case justify such order. In the instant case this aspect has been discussed in detail by the Revisional Court and from its judgment portion of the relevant paragraph is reproduced as under:- "He, however, revoked the general power of attorney through a proclamation in a newspaper which has small circulation. It is not necessary that the petitioner and others may have come to know regarding the cancellation of general power of attorney. Even otherwise, he himself could dispose of the land as there was an exchange deed in his favour. It appears that he wanted to dispose of the land at a higher price through the help of the petitioner and others. Now, if the petitioner and others disposed of the land after the cancellation of the general power of attorney, it does not show that the petitioner and others intended to commit any fraud. The disposal was made under general power of attorney and the complainant could claim the price from the petitioner and others. Moreover, there being an exchange deed, the complainant could come to the Civil Court for the vindication of the grievance."

7. Second ground given by the High Court is that writ will not lie if final order is passed by the Revisional Court. There is no dispute about the fact that powers of the High Court for exercise of revisional jurisdiction under section 439, Cr.P.C. Are wider in scope than powers in the writ jurisdiction. By amendment in the law now Sessions Court and High Court have concurrent revisional jurisdiction which is allowed in the normal course to be exercised first by lower forum but that does not decrease the scope of jurisdiction as mentioned above. In such circumstances it is said that if there is finding by the Court of competent jurisdiction on the revisional side then it has attained finality. On the same question writ petition would be non-maintainable because otherwise it would amount to allowing question finally decided in one set of forums to be agitated afresh in another set of forums and that way there will be no end to the finality. In support of the proposition reference can be made to the cases of Abdul Rehman Bajwa v. Sultan and others (PLD 1981 Supreme Court 522) and Javaid Iqbal v. Muhammad Din and another (1990 SCM R 1309).

8. For the facts and reasons stated above, we are unable to find any flaw or legal infirmity in the judgment of the High Court to which no exception can be taken. Resultantly, leave is refused and petition is dismissed as having no merits.