MIRAJ KHAN vs GUL AHMED and 3 others

ORDER

' ABDUR REHMAN KHAN, J.---By the impugned judgment delivered by a learned Judge in the High Court on 11th June, 1999, F.I.R. No,306 dated 19-6-1998, under sections 406/419/420 P.P.C. Of Police Station Dagar, was quashed. This petition has, therefore, been moved to call in question the legality of the said order and to obtain leave for this purpose.

2. Relevant facts are that on the basis of an application submitted by the complainant/petitioner a case under section 406/419/420, P.P.C. Through F.I.R. No, 306 was registered on 19-6-1998, against respondent No,1. It was stated by the complainant in the F.I.R. That on 15-11-1998, respondent No,1 came to his house and told him that his brother had sent him a letter to give Rs,95,000 to him for purchase of land. The complainant told Gul Ahmed that he has no hesitation in paying the amount, but as his brother Ahmed was not in the house, therefore, he would consult him. Thereafter he consulted his brother and issued a cheque for Rs,95,000 to be paid to Gul Ahmed as "Qarz-e- Hasna". Later on when the petitioner demanded the return of the said amount, he found respondent No,1 reluctant to pay it. However, he promised that he would not misappropriate the disputed amount received by him as "Amanat". During investigation the Prosecuting Inspector gave the following.

"I studied the case file and evidence on record. P. Ws. Dilfaroz and Ahmad Taj stated that the amount was given by the complainant to the accused as loan (Qarze-Hasna), but not the same amount was kept with him as trust money. The amount was not received to the accused fraudulently or dishonestly, therefore, no offence of breach of trust or cheating made out. It is a civil nature case if approved, may be cancelled and the parties if wish will go to the Civil Court."

' This opinion was approved by the Superintendent of Police of the District and he directed that the case against the accused be cancelled. However, the learned Magistrate/Ilaqa Qazi, did not agree to the cancellation of the case and instead directed the prosecution to put incomplete Challan in his Court, which was accordingly done and process were issued against the accused/respondent No,

1. The learned High Court was approached by respondent No,1 under section 561-A, Cr.P.C. For quashment of the F.I.R. And while allowing the said petition by the impugned order a learned Judge directed that the F.I.R. Be cancelled.

3. Learned counsel appearing for the petitioner argued that the accused/respondent No,1, had an adequate remedy of approaching the trial Court for his acquittal under section 249-A, Cr.P.C. And, therefore, the High Court legally erred in entertaining the application under section 561-A, Cr.P.C.

And cancellation of F.I.R. He relied on Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore (PLD 1997 SC 275). On the other hand learned counsel appearing for the caveator submitted that there was no bar in appropriate cases to approach the High Court under section 561-A, Cr.P.C. For quashment of F.I.R. He relied on State through Advocate-General, N.-W.F.P., Peshawar and others v. Gulzar Muhammad and others (1998 SCM R 873) and Muhammad Ali and another v. Assistant Commissioner, Narowal and another (1987 SCM R 795).

4. There is no absolute bar on the power of the High Court to quash an F.I.R. And it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249-A, Cr.P.C. It is cordinal principle of law that every criminal case should be adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid in a certain case so as to be made applicable to other cases. Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the present case are scrutinised on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned F.I.R. Would be sheer wastage of time. It is admitted in the F.I.R. Which is based on the written application of the complainant that the disputed amount was given as "Qarz-e-Hasna". It is obvious that the addition of word "Amanat" with "Qarze-Hasna" is ridiculous and appears to have been added so as to justify the registration of the criminal case. The cases relied on by the learned counsel for the caveator support the view taken by the High Court.

5. We are of the view that even on admitted facts no offence can be made out against the respondent as the dispute is entirely of civil nature which has been converted into criminal proceedings with ulterior motive. The High Court was, therefore, correct in abashment of the F.I.R.

And no exception can be taken to the impugned order. Consequently, leave to appeal is refused and this petition is dismissed.