ORDER SHEET

IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.

Criminal Miscellaneous Application No.S.66 of 2011

Applicants:                              Shahab Ahmed, Azra Jamal, Aurangzeb and Aitzad Ahmed through Syed Tarique Ahmed Shah, Advocate.

Respondents:                           (1) The State (2) S.I.O, PS B-Section, Latifabad, Hyderabad through Syed Meeral Shah, D.P.G. Sindh.

Complainant:                          Mst. Fareeda Bano through Syed Ahsan Ali Shah, advocate.

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Date of hearing:                      15.12.2016.

Date of decision:                     15.12.2016.

O R D E R

KHADIM HUSSAIN TUNIO, J: - Through instant application filed under section 561-A, Cr.P.C, the applicants, namely, Shahab Ahmed Aitzad, Azra Jamal, Aurangzeb and Aitzad Ahmed pray to set aside the order dated 24.01.2011, passed by the learned Civil Judge & Judicial Magistrate-VIII, Hyderabad whereby he took the cognizance of the offence and directed S.I.O of PS B-Section Latifabad to submit report under section 173 Cr.P.C.

2.         Briefly facts of the case as unfolded in the FIR are that complainant Mst. Fareeda lodged FIR at PS B-Section Latifabad, Hyderabad narrating therein that she had executed agreement to sell through Irfan, the State Agent with Aijaz and Aurangzeb in respect of purchase of house No.235 / E, Unit No.8, Latifabad, Hyderabad. Aurangzeb and Aitzaz claimed themselves to be owners of the house. As per agreement to sell that 03.04.2010, sale consideration for purchase of house was settled at Rs.76,00,000/- and she paid an amount of Rs.10,00,000/- as earned money. On 17.04.2010, the parties executed another agreement while suppressing the earlier executed sale agreement. According to second agreement, complainant paid Rs.1,00,000/- to applicants / accused on their demand and date for final payment was extended from 31.12.2010 to 17.08.2011. Applicants / accused demanded further amount of Rs.10,00,000/- from respondent / complainant on the pretext of marriage of their sister, as such, she paid further amount of Rs.10,00,000/- on 17.08.2010 in presence of broker Irfan. After some time respondent / complainant came to know that applicants / accused are not lawful owners of the disputed house and whole family is cheater and documents in respect of the house in question were called by Anti-Corruption Court, thereafter, respondent / complainant along with broker Irfan went to the house of applicant / accused and disclosed them about the fraud they have committed with her, on which, applicant / accused Shahab Ahmed and his wife abused while using filthy language to respondent / complainant and broker Irfan then other applicants / co-accused came there having T.T. pistols and asked to respondent / complainant to forget her amount and issued threats of dire-consequences to her and drove them out of the house. Respondent / complainant and Irfan came out and saw Khalid Qureshi, Khalique Ahmed, Ikhlaque were present outside the house of applicants / accused and respondent / complainant and Irfan informed them about alleged incident. Thereafter, applicants / accused sent legal notice to respondent / complainant by converting the criminal case into civil and in which they disclosed that they had have only received Rs.11,00,000/- though they have received Rs.21,00,000/-. Applicants /accused filed CriminalMiscellaneous Application before Sessions Judge, Hyderabad in order to pressurize the respondent / complainant with intent to withdraw her claim, therefore, she went to police station and lodged FIR against applicants / accused.

3.         After registration of FIR, Investigating Officer recorded statements of Muhammad Irfan, Muhammad Ikhlaque, Muhammad Riaz, Muhammad Ali, Khalique Ahmed, Muhammad Khalid, applicants / accused, defense witnesses and disposed of the case under false class on the plea that dispute between the parties is of civil nature and applicants / accused Azra Jamal had already instituted civil suit before the Court of law, hence, no criminal offence made out. After hearing the parties, learned Magistrate took cognizance of the offence and issued directions for submission of report under section 173 Cr.P.C. Hence, this application,

4.         Syed Tarique Ahmed Shah, learned counsel for applicants / accused argued that the impugned order passed by learned Magistrate is opposed to law, facts and equity; that the impugned order from the face of it, appears to be arbitrary and passed by the learned trail Magistrate in hasty manner without applying judicious mind; that impugned order appears not to be an order on the basis of summary report but it is a verdict like a judgment which caused prejudice to the case of parties prior to trial and same is not permissible under the law; that the alleged incident was taken place on 10.09.2009 with which the applicants / accused have no concerned as dates of execution of agreements were prior to commission of alleged incident; that the dispute between the parties is of civil nature; that the respondent / complainant moved application to Ex: Officio, Justice of Peace on 14.10.2010 though date of commission of alleged incident is shown as 10.09.2010 and legal notice replied by respondent / complainant on 30.09.2010, wherein, the allegation regarding cheating has been leveled, but nothing has been disclosed regarding commission of alleged incident, on that applicant / accused has been honorably acquitted by the Court of learned Special Judge, Anti-Corruption (Central) Hyderabad vide judgment dated 02.07.2010; that one Mushtaque stood surety for applicant / accused Muhammad Shahab and while submitting documents of another property and applicant No.4 / accused never stood surety on behalf of applicant  No.1 / accused; that the applicants No.2 / accused Azra Jamal is owner and applicants No.3 & 4 / accused are her attorney in respect of property in question; that names of applicant No.3 and 4 / accused have been mentioned in agreement to sell as owners of the property; that the applicants / accused had no intention or means era for cheating the respondent / complainant in any manner ;that the respondent / complainant failed to fulfill her part by making the part payment i.e. Rs.14,00,000/- on the demand of applicants / accused as per para No.2 of agreement to sell dated 03.04.2011; that the applicant No.2 to 4 / accused filed civil suit before the competent civil court on 23.09.2010 for cancellation of agreement to sell, hence, FIR has been lodged by respondent / complainant with mala-fide intention in order to compel the applicants / accused to withdraw their civil suit; that the applicants have received only Rs.11,00,000/- though respondent / complainant party claiming to have paid Rs.21,00,000/-, thus, by virtue of agreement to sell dated 02.04.2010 and 17.04.2010, no any harm, injury and damage had been caused to the respondent / complainant; that respondent / complainant had manipulated and managed the receipt dated 17.08.2010 fraudulently showing payment of Rs.10,00,000/- to applicants / accused party; that the order passed by the learned trial Court is not sustainable under the law, based upon surmises have no legal and factual foundation. Learned counsel for the applicants / accused lastly prayed that the application may be allowed by setting aside the order passed by the learned Magistrate. He lastly urged that the proceedings before the learned trial court may be stayed till decision of civil suit by the Civil Court.

5.         Syed Meeral Shah, learnedDeputy Persecutor General, representing the State,opposed the applicants on various grounds. He has submitted that the grounds urged by the applicants’ side need full-fledged inquiry at the trial and application in the given circumstances is not maintainable under the law and be dismissed accordingly. However, Syed Ahsan Ali Shah, learned counsel for respondent No.3 / complainant has argued in the same line as argued by learned D.P.G. for the State.

6.         I havegiven due attention to the submission made by the learned counsel for respective parties and carefully perused the record.  The respondent / complainant has disclosed the facts of cognizable offence in the FIR, investigation in the case was thoroughly conducted by the Investigating Officer and learned Magistrate has passed the elaborative and speaking order while considering the case of either party and taken the cognizance of the offence. The learned Magistrate has not committed any illegality while passing the impugned order. The applicants failed to point out any material illegality or irregularity committed by the trial Magistrate while passing the order impugned through present application. The learned Magistrate has rightly come to the conclusion that there is no bar that criminal proceedings as well as civil can be filed simultaneously.In the contents of the instant application and that of the F.I.R. are put in juxtaposition to each other, it brings the case of the parties within the area of disputed questions of facts and law which cannot be resolved by this Court in the exercise of its inherent jurisdiction under section 561-A Cr.P.C. that requires proper probe, investigation and evidence of the parties, which is absolutely the job of the trial Court.It is relevant to mention here that,stifling and throttling of criminal proceedings has been disapproved by the Honorable superiorCourt. The question of law and fact involved in the matter which require thorough probe and inquiry as well as same can be thrashed out at trial through regular trial after recording the evidence of the parties. The prima facie the prosecution has brought sufficient material on the record during the course of investigation to connect the applicants / accused with the offence with which they are charged.

7.         It is a settled law that if, prima facie, an offence has been committed, the ordinary course of trial before the competent Court cannot be allowed to be deflected by resorting to the exercise of inherent jurisdiction of this Court as after taking cognizance of the case by the trial Court, the F.I.Rs. registered in that case, cannot be quashed and fate of the cases and of accused persons challaned therein is to be determined by the trial Court itself,after taking cognizance, if the accused deemed to be innocent or claimed that they had been falsely implicated, they may approach the trial Court by invoking provisions of Section 249-A Cr.P.C or 265-K Cr.P.C instead of approaching this Court under inherent powers.

8.         It is more particularly it has been held in case of Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 Supreme court 55) the Honorable Supreme court has pleased to observe that :-

“whereby the Court has taken cognizance of an offence complained of and has issued warrants or summons for causing the accused to be brought or produced before the Court are judicial orders. Where taking cognizance of the offence after hearing the accused persons and the Prosecutor, the Court considers that the charge is groundless or that there is no probability of the accused being convicted of any charge, it may record acquittal under section 249-A Cr.P.C and or Section 265-K Cr.P.C as the case may be. The Sessions Judge and or the High Court under Sections 435 and 439 Cr.P.C may exercise Revisional power to examine the legality or propriety of any order passed and or examine the regularity of any proceedings of the Court subordinate to it. Exercise of jurisdiction under Section 561-A, Cr.P.C by the High Court is akin to the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; exercise of such jurisdiction is not to be exercised in routine and or as a matter of course merely because such jurisdiction is available and or could be exercised. Exercise of inherent jurisdiction is dependent on non-availability of alternate and efficacious remedy and or existence of some extraordinary circumstances warranting exercise of such jurisdiction by-passing such alternate remedy by the High Court. Another rule of propriety, that has evolved by precedent law must not lose sight is that where two Courts have coextensive or concurrent jurisdiction, than the propriety demands that jurisdiction of Court of the lower grade is to be invoked in the first instance”.

9.         Similar view has been taken by Hon’ble Supreme Court in the case of ‘Bashir Ahmad v. Zafarul Islam’ (PLD 2004 SC 298),‘Sher Afghan Khan Niazi v. Ali Habbaib and others‘(2011 SCMR 1813) and ‘Director General, Anti-Corruption Establishment Lahore and others v. Muhammad Akram Khan and others’ (PLD 2013 SC 401)

10. With regard the contention of Learned Counsel for the applicants that the proceedings before the trial magistrate be stayed till disposal of civil suit pending between the parties in respect of subject matter of present Criminal Miscellaneous Application before the Civil Court. Suffice it to say that it is a well-established law that the criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be preceded simultaneously. In this respect reliance may respectfully be placed on the case of “Haji Sardar Khalid Saleem v. Muhammad Ashraf and others” (2006 SCMR 1192)

11.       In the light of above position and discussion, the criminal miscellaneous application under section 561-A Cr.P.C. is not maintainable at law. Accordingly, same is dismissed. These are reasons for the short order dated 15.12.2016.

JUDGE