1984 P Cr (PLP)

In view of the above orders dated 13th April, 1982 of the learned trial Court, appellant has filed the above petition for quashment of the said proceedings on the grounds mentioned in above petition. Mr. A. K. Brohi, the learned counsel for the applicant in support of the above petition submitted as under: (a) That complaint in question does not at all disclose commission of offence under section 420, P. P. C. by applicant. (b) That police did not take any action against applicant under section 420, P. P. C. on report alleged to have been lodged by the Respondent No. 1. (c) That false defence by itself would not amount to any offence. In support of this reliance placed on 1983 P Cr. L J 132 and 484. (d) That prima facie dispute between the parties is civil dispute, as a result of alleged civil contract for construction and since cognizance was taken on private complaint by the learned trial Court, who issued process under section 420, P. P. C. moving of application under section 429, Cr. P. C. before the said Court would be exercise in futility and the case of Honourable Supreme Court reported in 1970 S C M R 94, is not at all applicable to above petition and consequently above petition is maintainable. In support of these contentions the learned counsel for appellant relied upon case reported in 1978 P Cr. L J 143, 1983 P Cr. L J 132/484. Mr. Azizullah Shaikh, the learned counsel for respondent No. 1, on the other hand submitted as follows: That contract in question was between respondent No. 1 and present applicant, who initially paid Rs. 30,000 in all by instalment of Rs. 10,000 at each time, before he went for Umrah to respondent No.

1. However dispute arose between them after return of applicant from Umrah and ultimately respondent No. 1 lodged complaint with police on 12th July, 1981 after legal notice dated 11th July, 1981. On receipt of legal notice, applicant and respondent No. 2 got in collusion to deceive respondent No. 1 and entered into bogus agreement dated 18th July, 1981 by which both of them have cheated the respondent No. 1 in order to cause wrongful loss to respondent No. 1 in respect of said contract of construction and as such complaint prima facie discloses offence committed by appellant and respondent No. 2 under section 420, P. P. C. and consequently learned trial court has rightly taken cognizance of the complaint under section 420, P. P. C. and therefore above petition is not maintainable, as it would amount to stuffing of prosecution, before respondent No. 1, can lead his entire evidence, in support of his complaint in question. The learned Advocate appearing for the State also adopted the arguments advanced by the learned Advocate for respondent No. I and submitted that above petition is liable to be dismissed. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court i.e. complaint, statements recorded under section 202, Cr. P. C. and cases cited by the learned Advocates for the applicant. The main contention of the learned Advocate for respondent No. 1 before me was, that on account of agreement dated 18th July, 1981, applicant and respondent No. 2 entered in collusion to cheat the respondent No. 1 and to deprive respondent No. 1 of construction contract. In order to appreciate above arguments of the learned counsel, I would reproduce provisions of section 415, P. P. C. which describes cheating. "Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or pro perty, is said to "cheat". In light of above definition of cheating, I have very carefully gone through agreement dated 18th July, 1981 entered between applicant and respondent No.

2. In my opinion, respondent No. 1 was in no way induced to deliver any property to any person nor he was induced to consent that any person shall retain any property on the basis of agreement dated 18th July, 1981. In fact dispute between the applicant and respondent No. 1 in respect of the alleged contract started much prior to this agreement between applicant and respondent No.

2. Basically said dispute is civil dispute, on account of alleged breach of contract between applicant and respondent No. 1 and the said dispute has nothing to do with existence or non-existence of the agreement, dated 18th July, 1981. In view of this conclusions of mine, the complaint filed by respondent No. 1, cannot lead to conviction of applicant and/or respondent No. 2 under section 420, P. P. C. and as such continuance of said proceedings against applicant and respondent No. 2 in my opinion would amount to abuse of the process of the learned trial Court. Therefore, I allow the above petition and quash the proceedings, pending against the applicant and respondent No. 2 in the Court of Assistant Commissioner and S. D. M. (Central), Karachi in shape of Cr. D Case No. 176/82 and discharge the bail bonds executed by applicant and respondent No. 2, in the said proceedings. M. Y. H. Proceedings quashed.