2016 Y L R 2697
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail, J
SIKANDAR ALI and another ---Applicants
Versus
The STATE and another ---Respondents
Criminal Quashment Application No.(s) 138 of 2014, decided on 28th November, 2014.
Criminal Procedure Code (V of 1898) ---
----Ss.561- A, 190, 200 & 201---Penal Code (XLV of 1860), Ss. 161, 409 & 420---Taking illegal
gratification, criminal breach of trust by Banker, cheating and dishonestly inducing delivery of
property ---Quashing of FIR ---Trial Court entertained the complaint of State owned Bank---On
receiving a detailed report from the Bank, Trial Court, directed the S.H.O. concerned for
registration of FIR against the petitioners under Ss.161, 409 & 420, P.P.C.---Petitioners, had
filed petition for quashing of FIR on the ground that Trial Court had no jurisdiction to direct
registration of FIR against them and that Trial instead of recording the statement of the
complainant, and making direction for conducting inquiry, had started invest igation in the case
and sought report of the Bank---On receipt of detailed reply from the Bank Trial Court did not
give direction for conducting inquiry and passed order for registration of FIR ---Validity ---Course
adopted by the Trial Court, was not suppor ted by law as envisaged under S.190, Cr.P.C.; which
provided that court could take the cognizance of offence upon receiving a complaint of fact,
which constituted such offence ---Trial Court was bound to order for inquiry to be conducted, or
transfer the case to the Court of Session---Trial Court without fulfilling the mandate of law gave
directions for registration of FIR, which course was not permissible under the law ---Record was
silent in respect of demanding bribe, question of breach of trust also did not arise in the case---
Case was fit in which the power under S.561- A, Cr.P.C., could be exercised, in order to prevent
the abuse of the process of law, or to secure the ends of justice ---In absence of any evidence in
respect of allegations levelled against the petitioners, any criminal proceedings in the case would
amount to mere abusing the process of law ---FIR recorded against the petitioners, was directed
to be quashed, in circumstances.
Bashir Ahmed v. Zafar -ul-Islam, PLD 2004 SC 298 ref.
Kaleemullah Quresh for Petitioner.
Muhammad Sadiq Guman for Respondent No.2.
Jamil Akhtar for the State.
Date of hearing: 21st November, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Criminal Quashment
Petition under section 561- A of the Criminal Proce dure Code, 1898 (Cr.P.C.) carries the
following relief:--
"The petitioner, therefore, humbly prays that this Hon'ble Court may be graciously
pleased to suspend the impugned order till disposal of instant application to restraint the
JM Mastung [sic] from p roceeding any trial or taking any cognizance permanently or till
the time of disposal of this instant petition, declare the impugned order of JM Dera Allah
Yar as well as impugned FIR is to be set aside or quashed, or to pass other or further
order or orde rs as to your [sic] lordships may seem/deem fit and proper. The cost may
also be awarded."
2. The relevant facts for disposal of the instant petition are that the private respondent filed
a complaint under section 200 of the Cr.P.C. before the learned Judi cial Magistrate -I, Dera Allah
Yar, for conducting an inquiry and registration of case against the petitioners. The learned trial
Court entertained the said complaint and the matter was sent to the Credit Chief National Bank
of Pakistan, Regional Head Offic e, Quetta Cantonment, and on receiving a detailed reply, the
learned trial Court vide order dated 17th September, 2014 directed the SHO, Police Station Dera
Allah Yar for registration of FIR against the petitioners. Corollary, a case vide FIR No.176 of
2014, under sections 161, 409 and 420 of the P.P.C. was registered against the petitioners on the
report of respondent No.2, hence this petition for quashment of the said FIR, on the ground that
the learned trial Court has no jurisdiction to direct the SHO fo r registration of FIR against the
petitioners and thus the impugned order is illegal and without jurisdiction.
3. Mr. Kaleemullah Quresh, learned counsel for the petitioner asserted that after approval of
sanction advice in favour of respondent/complainant he was required to produce the guarantor,
who in case of government employ was required to furnish an undertaking from a drawing
disbursing officer ("DDO") with further undertaking that in case of customer's default, the
guarantor's service benefit will be used for loan settlement. He maintained that in view of loan
disbursing requirement the complainant was directed to produce the guarantor, therefore, he
furnished a guarantee of one Bashir Ahmed Magsi, an employee, on the strength of Zarai
Tarqiati Bank Limited ("ZTBL"). He added that when the documents of purported guarantor
were sent to his parent department for verification, it was pointed out that the said guarantor is a
contractual employee, because the Prime Minister's Youth Business Loan Scheme sti pulated that
the guarantor must be serving as a permanent employee. He contended that the status of
purported guarantor could not be verified as the Zonal Chief of ZTBL had refused to verify the
guarantor's status. Besides this the complainant approached t he learned trial Court and succeeded
to get the order of registration of FIR despite the fact that a letter was also sent to Human
Resource Department of ZTBL, Islamabad, and reply in said regard was still awaited. He also
referred to a letter of Manager o f National Bank of Pakistan ("NBP"), Dera Allah Yar dated 31st
October, 2014, which manifests that the complainant/respondent had furnished the property
documents of the said guarantor in lieu of guarantee for release of loan amount and his case is
still u nder progress and will be decided in near future. He finally urged that, keeping in view the
peculiar circumstances, no criminal liability can be imposed upon the petitioners as according to
their mandate and standard procedure of operating as stipulated b y NBP and Prime Minister's
Youth Business Loans Scheme. He stated that there is no evidence in respect of demanding bribe
and the loan case of respondent/complainant could not be materialized due to his own fault,
hence registration of FIR against them is against the norms of natural justice, which amounts to
abuse of the process of law, therefore, liable to be quashed.
3. Mr. Sadiq Guman, Advocate appeared on behalf of the complainant/ respondent
contended that the petitioners were not adhering to the principles and policy of Youth Business
Loans Scheme and were demanding bribe from the complainant and on his refusal his case was
kept pending and he was directed to fulfill the terms and conditions, which he had already
fulfilled prior to submitting application for loan, as such, learned trial Court has rightly directed
the authority concerned for registration of FIR and the petition being devoid of merits is liable to
be dismissed.
4. Mr. Jamil Akhtar, learned Additional Prosecutor General also opposed the petition and
endorsed the arguments put forth by learned counsel for the complainant.
5. I have heard the parties at length and have also gone through the record. It appears that,
initially the complainant filed a private complaint before learned trial Cour t, who instead of
recording the statement of the complainant and making direction for conducting inquiry had
started investigation in the case and sought report from the Regional office of NBP. On receipt of
detailed reply from the office concerned, again, learned trial Court did not bother to give
direction for conducting inquiry and abruptly passed the order for registration of FIR. The course
adopted by learned trial Court is not supportive by law as envisaged under section 190 of the
Cr.P.C., which provides that Court may take the cognizance of offence upon receiving a
complaint of fact, which constitutes such offence, but the procedure of complaints to a magistrate
is enumerated under section 200 of the Cr.P.C. which also provides that on receipt of com plaint a
magistrate shall examine the complaint on oath and thereafter to decide whether the same is
triable by his court or by session. Therefore, it would be instructive to reproduce sections 200
and 201 of the Cr.P.C., which stipulates as under: --
"200. Examination of complainant, a Magistrate taking cognizance of an offence on
complaint shall at once examine the complainant upon oath, and the substance of the
examination shall be reduced to writing and shall be signed by the complainant and also
by the Magistrate:
Provided as follows:
(a) when the complaint is made in writing nothing herein contained shall be deemed
to require a Magistrate to examine the complainant before transferring the case under
section 192; or sending it to the Court of Session:
(aa) when the complaint is made in writing nothing herein contained shall be deemed
to require the examination of a complainant in any case in which the complaint has been
made by a Court or by a public servant acting or purporting to act in the discharge of his
official duties..
(c) when the case has been transferred under section 192 and the Magistrate so
transferring if has already examined the complainant, the Magistrate to whom it is so
transferred shall not be bound to re -examine the complainant.
201. Procedure by Magistrate not competent to take cognizance of the case. --(1) If the
complaint has been made in writing to a Magistrate who is not competent to take
cognizance of the case, he shall return the complaint for presentation to the proper Court
with an endorsement to that effect.
(2) If the complaint has not been made in writing such Magistrate shall direct the
complainant to the proper Court."
In view of referred to provisions of the Cr.P.C. the learned trial Court was bound to order
for inquiry to be conducted or transfer the case to the Court of Session, but rather than fulfilling
the mandate of law learned trial Court gave direction for registration of FIR which course is not
permissible under the relevant provisions of law.
6. Now, adverting t o the merits of the case, it is specifically mentioned that after approval of
sanction advice the loanee/ complainant was required to fulfill the terms and conditions of the
said loans scheme and when details of the guarantor were not verified by the guara ntor's parent
department. The petitioners were not supposed to proceed with the matter and to release the loan
amount to the complainant without fulfilling the requisite formalities. The record further reveals
that when the status of guarantor was not veri fied by his parent department i.e. Salary Disbursing
Officer, he had refurnished a guarantee and the property documents were submitted in lieu of
requisite guarantee. Moreover, the record is completely silent in respect of demanding bribe as
well as there is no evidence on record, which could suggest that the complainant was asked to
pay Rs.200,000/ - as a token of bribery. In view of detailed report submitted by Mr. Ali Ahmed
Panezai, Vice Manager/General Manager Credit of NBP the question of breach of trus t does not
arise for the simple reason that for establishing an offence under sections 409 of the P.P.C. The
requirements of section 405 of the P.P.C. are required to be satisfied, which is reproduced
hereunder: --
"Criminal breach of trust. Whoever, being in any manner entrusted with property, or with
any dominion over property, dishonestly misappropriates or converts to his own use that
property, or dishonestly use or disposes of that property in violation of any direction of
law prescribing the mode in which such trust is to be discharged or of any legal contract,
express or implied which he has made touching the discharge of such trust, or willfully
suffers any other person so to do, commits "criminal breach of trust".,
7. The question of quashment of cri minal proceedings before the Hon'ble Supreme Court of
Pakistan came up for hearing in case of Bashir Ahmed v. Zafar -ul-Islam, PLD 2004 SC 298,
wherein it was held and the correct import of provision of Section 561- A of the Cr.P.C. had been
summarized as un der:--
"(i) The said provision should never be understood to provide an additional or an
alternate remedy nor could the same be used to override the express provisions of law:
(ii) the said powers can ordinarily be exercised only where no provision exists in the
code to cater for a situation where the code offers no remedy for the redress of a
grievance:
(iii) inherent power can be invoked to make a departure from the normal course
prescribed by law only and only in exceptional cases of extraordinary nature and reasons
must be offered to justify such a deviation; and
(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be
permitted to take its regular course envisaged by law and provision of section 561- A,
Cr.P.C. should be invoked only in exceptional cases for reasons to be recorded."
Thus, in view of dictum laid down by the Hon'ble Supreme Court of Pakistan, this is a fit
case in which the power under Section 561- A of the Cr.P.C. can be exercised without any
hesitation in order to prevent the abuse of the process of law or otherwise to secure the ends of
justice. In such view of the fact that no evidence in respect of allegations leveled against the
petitioners is available on record, whilst defence introduced by them is satisfacto rily explained
by the documentary evidence. Any criminal proceedings in the instant case will amount to mere
abusing process of law, therefore, FIR No.176 of 2014 under sections 161, 409 and 420 of the
P.P.C. lodged with Thana Dera Allah Yar, District Jaff arabad is hereby directed to be quashed
and the petition is accepted.
HBT/49/Bal Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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