1996SCMR509 (PLP)

‑‑‑‑S. 406/420‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Question whether the accused had mens rea to misappropriate the amount or not and whether offence of cheating was committed or not was to be decided by the Trial Court after evaluation of evidence brought before it‑‑‑Accused after having received Rupees twenty‑five lacs had neither finalized the sale and handed over the possession of the house in dispute nor returned the amount obtained in 1987‑‑‑High Court had rightly found that the case warranted no interference so that law should take its own course‑‑‑Leave to appeal was refused in circumstances. Sardar Muhammad Ishaq, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner. Nemo for Respondents Date of hearing: 22nd November, 1994. SAJJAD ALI SHAH, C.J.‑‑‑The petitioner before us is the owner of the house in dispute, in respect of which agreement was executed for its sale for 30 lacs; from which 25 lacs were received by the petitioner and 5 lacs were to be paid at the time of registration of sale‑deed and handing over of possession, respondent No.1, Shaukat Ali, feeling aggrieved that the last part of the agreement was not performed by the petitioner, filed a criminal case before the learned Magistrate, 1st Class, Islamabad, under section 406/420,, P.P.C.; in which the petitioner filed an application under section 249‑A, Cr.P.C. for his acquittal on the ground that there was no probability of his being convicted. This application was dismissed by the trial Court and the petitioner moved the High Court under section 561‑A, Cr.P.C. for quashment of the proceedings before the trial Court, which is dismissed vide judgment dated 10‑10‑1994 and against which leave is being sought ‑to file an appeal.

2. It is submitted that the petitioner was ready to perform the last part of the agreement and was waiting for respondent No.l to turn up for payment of last instalment of Rs.5,00,000 (Rupees five lacs) and registration of sale‑deed, but he failed to come. It is further stated that the petitioner had no intention of committing cheating as he was always willing and ready to return the amount after adjudication in that respect from the Court. On query from the Court as to under what provision of law he had detained the amount, and what steps were taken by him to obtain decision from the Court in that regard, learned counsel for the petitioner was unable to give any satisfactory reply and stated that the petitioner did not take any steps to go to the Court, but respondent No.l filed the criminal case against him and also a civil suit for specific performance of the contract, which are pending. It is contended by the learned counsel that the petitioner has not committed any act of cheating as he had no mens rea to misappropriate the amount received from respondent No. l and even now is prepared to return the money if so directed by the Court.

3. The question whether the petitioner has mens rea to misappropriate the amount or not and whether offence. of cheating was committed or not is to be decided by the trial Court after evaluation of evidence brought before it. There is no dispute about the factual position in this case that after receiving Rs.25,00,000 (Rupees twenty‑five lacs) by the petitioner, neither the sale was finalized and possession handed over nor the amount was returned, which was obtained in 1987. We agree with the High Court that this is a case in which interference is not warranted so that law should take its own course. Leave is' refused and in the result the petition is' dismissed as being without merits. N.H.Q./G‑490/S????????????????????????????????????????????????????????????????????? ??????????? Leave refused