PLJ 2024 Lahore (Note) 53
Present: Malik Shahzad Ahmad Khan, J.
Sheikh MUHAMMAD ZAHIR SETHI and another--Petitioners
versus
SHO POLICE STATION CANTT, SIALKOT and 4 others--Respondents
W.P. No. 1684 of 2024, decided on 7.3.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Quashment of FIR--Contradictory stance of complainant--No receipt or stamp paper was availed regarding handing over amount--Matter of civil nature--No cognizable offence was made out--Mala fide of complainant--Question of--Whether or not any probability of conviction of an accused on basis of evidence collected in a case during investigation--The ingredients of offence were not attracted in a case--No offence under Section 406 of PPC was made out from bare perusal of contents of impugned FIR mere submission of challan before trial Court ipso facto, did not create any absolute bar against quashment of FIR when no cognizable offence was made out from contents of same--There was no need to direct petitioners to first file a petition u/S. 249-A of Cr.P.C., before trial Court, which be a futile exercise--It was a case of civil nature for recovery of amount in question but complainant malafidely lodged FIR--It was a fit case to exercised discretion of High Court in favour of petitioners--Petition allowed. [Para 6] A, C & D
2000 SCR 122 & 1994 SCMR 798 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Quashment of FIR--There is a difference between a case for quashment of FIR and a case for quashment of criminal proceedings--An FIR can be quashed under Article 199 of Constitution, if from bare reading B of FIR, no cognizable offence is made out in a case, and there is no need to evaluate evidence of prosecution collected by 1.0 during investigation. [Para 6] B
Ch. Babar Waheed, Advocate for Petitioners.
Nemo for Respondents No. 3 & 4
Mr. Ahsan Rasool Chatha, Assistant Advocate General for Respondent Nos. 1, 2 & 5.
Date of hearing: 7.3.2024.
Judgment
Through this petition, the petitioners, namely, Sheikh Muhammad Zahir Seithi and Muhammad Imtisal seek quashment of the impugned FIR No. 1783 dated 12.08.2023 registered at Police Station Cantt, Sialkot offence under Section 406 of PPC.
2. As per police report, Mst. Ayesha Tayyab complainant/ Respondent No. 3, has duly been served with the notice of this case but no one is present on her behalf despite repeated calls with intervals. Even otherwise, it is a State case and the learned AAG is ready to argue the same, therefore, I proceed to decide the instant petition after hearing arguments of learned counsel for the petitioners, learned AAG and perusal of the documents annexed with the present petition.
3. Arguments heard. Documents annexed with the present petition have been perused.
4 As per brief allegations levelled in the FIR, on 17.03.2023, the petitioners, who were close relatives of the complainant came to the house of the complainant party situated in Sialkot city and requested them that some amount may be given to them as loan because they had suffered financial loss in their business. The petitioners further promised that they will return the abovementioned amount to the complainant party within a period of 2 months. On the abovementioned request of the petitioners, the husband of the complainant namely Tayyab brought an amount of Rs. 40,00,000/- and handed over the same to the complainant so that she may herself give the said amount to the petitioners. The complainant further alleged that she gave the abovementioned amount to the petitioners as trust with the promise that the petitioners will return the said amount to the complainant party. It is added that after two months, when the complainant party approached the petitioners for return of their amount, the petitioners started extending threats to the complainant party and refused to return the abovementioned amount, hence the above-referred FIR.
5. It has been argued by learned counsel for the petitioners that an identical FIR No. 2398 dated 31.08.2023, offence under Section 406 of PPC Police Station A-Division District Sheikhupura was lodged by one Bilal Sikandar, who was brother-in-law of the complainant of the present case namely Mst. Ayesha Tayyab and the said FIR has already been quashed by this Court vide judgment dated 22.11.2023. He added that the registration of instant FIR shows that two separate false FIRs have been lodged by the same family but Muhammad Shahbaz SI submits that he has no knowledge of the abovementioned relationship of the complainant of the present case with the complainant of abovementioned FIR No. 2398/2023, therefore, merits and demerits of above-referred arguments of learned counsel for the petitioners cannot be discussed.
6. In so far as merits of the instant case are concerned I have noted that there is neither any receipt nor any stamp paper available on the record regarding handing over of the abovementioned amount by the complainant to the petitioners. It does not appeal to a prudent mind that a huge amount of Rs. 40,00,000/- was handed over by the complainant to the petitioners without obtaining any document/ receipt/stamp paper from them. It is further noteworthy that as per contents of first part of the FIR, the petitioners demanded the amount in question as loan or trust but in the second part of the FIR it is alleged that the above mentioned amount was handed over by the complainant to the petitioners as trust. Two self contradictory stances have been taken by the complainant while mentioning the amount in question in the FIR, as loan and trust. It appears that the word, “trust” has malafidely been used alongwith the word, loan in order to make it a criminal offence which was in fact a civil matter. It is by now well settled that by merely mentioning the word ‘amanat (trust) in the contents of the FIR would not attract the provisions of Section 406 of PPC if otherwise, the ingredients of the said offence are not attracted in a case. Reference in this context may be made to the case of ‘Miraj Khan vs Gul Ahmed and 3 others’ (2000 SCMR 122). Learned Assistant Advocate General has next argued that challan in this case has already been sent to the learned trial Court therefore, this petition may be dismissed with the direction to the petitioners to first file a petition under Section 249-A of Cr.P.C., before the learned trial Court for their acquittal in this case. In my humble view there is a difference between a case for quashment of FIR and a case for quashment of criminal proceedings. An FIR can be quashed under Article 199 of the Constitution, if from the bare reading of the FIR, no cognizable offence is made out in a case, and there is no need to evaluate the evidence of the prosecution collected by the I.O. during investigation. However, if from the contents of the FIR some cognizable offence is, prima facie, made out but it is claim of an accused that sufficient evidence is not available in the said case and there is no probability of his conviction, then the matter may be referred to the trial Court after submission of challan to evaluate under Section 249-A of Cr.P.C., that as to whether or not there is any probability of conviction of an accused on the basis of evidence collected in a case during investigation. As mentioned earlier, no offence under Section 406 of PPC is made out from the bare perusal of contents of the impugned FIR therefore, mere submission of challan before the learned trial Court ipso facto, does not create any absolute bar against the quashment of the FIR when no cognizable offence is made out from the contents of the same. No useful purpose shall be served by directing the petitioners to first avail the alternate remedy of moving a petition under Section 249-A Cr.P.C before the learned trial Court because in the instant case there is no probability of conviction and sentence of the petitioners in this case and there is no need to evaluate any evidence collected during the investigation of this case, hence further proceedings before the learned trial Court shall amount to abuse the process of the Court and the law. Reliance in this respect may be placed on the cases reported as ‘Miraj Khan vs Gul Ahmed and 3 others’ (2000 SCMR 122) & ‘The State vs Asif Ali Zardari and another’ (1994 SCMR 798). In the case of “Miraj Khan” supra, at page No. 3 the Hon’ble Supreme Court of Pakistan was pleased to observe as under:
“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 caordinal principal of law that every criminal case should be adjudged on its 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 trail. If the facts of the present case are scrutinized 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 “Qarze-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 quashment 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.”
Under the circumstances, there is no need to direct the petitioners to first file a petition under Section 249-A of Cr.P.C., before the learned trial Court, which will be a futile exercise. At the most, it was a case of civil nature for the recovery of amount in question but the complainant malafidely lodged the FIR. It is a fit case to exercise the discretion of this Court in favour of the petitioners.
7. In the light of above, this petition is allowed and the impugned FIR No. 1783 dated 12.08.2023 registered at Police Station Cantt, Sialkot offence under Section 406 of PPC is hereby quashed.
(Y.A.) Petition allowed
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