Sheikh MAHMOOD SAEED and others vs AMIR NAWAZ KHAN and another

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal is from the order of a learned Single Judge of Peshawar High Court, Peshawar, refusing to quash the proceedings pending under section 145, Cr.P.C. Before the learned Sub-Divisional Magistrate, Tangi.

2. The petition arose out of proceedings commenced under section 145, Cr.P.C. Relating to land measuring 21 Kanals and 14 Mamas fully described-in the preliminary order dated 12-12-1992 passed by Sub-Divisional Magistrate, Tangi. Respondent Amir Nawaz Khan claimed that he was the owner in possession of the land in dispute which was being falsely claimed to be in possession of the petitioners. It appears that the police, after investigating the case, submitted a report to the learned Sub-Divisional Magistrate, Tangi, for drawing up of proceedings under section 145, Cr.P.C.

As there was likelihood of breach of peace between the parties over their rival claims qua the possession thereon. On the perusal of the report, the learned Sub-Divisional Magistrate passed a preliminary order. It was challenged in Writ Petition No, 829 of 1993 before the Peshawar High Court, Peshawar. By order dated 19-9-1994 a Division Bench of the High Court, by consent of the parties, set aside the preliminary order dated 12-12-1992 passed by the learned S.D.M., Tangi and remanded the case to him "for passing the order afresh, after hearing the parties, within the contemplation of second proviso to section 145, Cr.P.C. Disclosing the existence of the, emergency the material on the basis of which it exits and the source which had disclosed the existence of such emergency".

3. On receipt of the file, the learned S.D.M., Tangi passed a fresh preliminary order on 22-5-1993 and proceeded with trial of the complaint case. The petitioners, in the meantime, moved the High Court under section 561-A, Cr.P.C. For quashment of the proceedings "on the ground that the parties had already compromised the dispute in the Court of Revenue E.A.C." before the receipt of this file on remand and that the terms of the compromise were not being complied with by the respondents.

4. The learned Single Judge in the High Court noticed that the certified copy of the compromise deed (which does not bear any date), however, indicated that some amount specified in the compromise deed had already been received by the petitioners. Mian Younas Shah, learned counsel for the petitioners, conceded before the learned Single Judge that the petitioners had received a sum of Rs,1,16,000 from" the respondent but urged that "the respondent was required to pay some money to the petitioners over and above the amount which they had already received".

The learned Judge, however, was not impressed by this submission raised on behalf of the petitioners and observed that "the learned counsel had himself agreed in the Writ Petition that the complaint case under section 145, Cr.P.C. Should be decided afresh by the Magistrate in the light of the observations made by the High Court". In consequence, the petition for quashment of the proceedings was dismissed in limine.

5. Mian Muhammad Yunas Shah, learned counsel for the petitioners, contended that it was a fit case for quashment being abuse of the process of law when it was a case of execution of a compromise decree before the Court of Revenue E.A.C. Whereby the respondent/landlord had to pay the amount of compensation for improvements which had not yet been finally paid to the petitioners.

6. We have decided to refrain from making any observations on the alleged compromise lest it should adversely affect the respective claims of the parties. Suffice It to say at this juncture that the ground urged before us hardly furnishes a valid ground for the quashment of the proceedings under section 145, Cr.P.C. Even otherwise, normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A Cr.PC. Should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muhammad Khan (PLD 1967 SC 317). Nonetheless, we may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassm ent. We are convinced that the present case is not of that nature and, consequently, the order passed by the learned Single Judge calls for no interference by this Court.

7. The petition for leave to appeal having no substance is accordingly dismissed.