1968 P (PLP)

Muhammad Ibrahim Memon for Appellant. Muhammad Haleem A. A. G. for the State. H. H. Farooqi for Respondent No.

2. Date of hearing: 18th November 1965. Opponent No. 2 (Abdul Qavi) had filed a complaint under sections 420 and 406, P. P. C. against the present applicant M. A. Osman Jan. The learned Magistrate after examining the com plainant Abdul Qavi on 10th September 1963, under section 200, Cr. P. C. had issued a process against the applicant for an offence punishable under section 420, P. P. C. only. After examining some witnesses he held that the dispute was of a civil nature and therefore dismissed the complaint and discharged the present applicant under section 253, Cr. P. C. Opponent No. 2 filed a Revision Application (No. 47/63) and it was allowed by the City and the Additional District Magistrate, Karachi, under his order dated 28th February 1964. He set aside the discharge order and remanded the case to another Additional City Magistrate for further inquiry. This revision application is filed against this order.

2. Relevant facts for our purpose and in order to' appreciate the points involved in this matter and also to arrive at correct conclusions are that the tender filed by the present applicant was accepted for the construction of quarters on plots which were allotted to the Telephone Employees Co‑operative Housing Society in K.D.A. Scheme No.

16. Agreement followed this acceptance and thereafter, he executed a separate agreement in favour of Abdul Qavi, who is also a member of this Society. He received two mounts from him but no construction has been raised by the applicant so far and his only plea was that of the shortage of cement: It was further alleged on behalf of Abdul Qavi that applicant M. A. Osman Jan had no intention to construct such quarters when he entered into agreement with him and the Society stated above. Ibis reasons are that the applicant had withdrawn the two sums of money deposited by him with the Bank, secondly, that he had purchased no material at all stating that such kind of Quarter cannot be constructed at such low cost and lastly, that he had made attempts to leave Pakistan. There is no breach of any term of the contact and as such it cannot be said as held by the trial Court that the dispute is of civil nature. The learned Additional Advocate‑General, who had appeared for opponent No. 1 (State) has not supported the applicant. He had argued before me that the applicant had entered into agreement with Abdul Qavi because of dishonest intention which appears from the allegations made in paragraphs 4 and 6 of his complaint, but this aspect of the case has not been considered by the trial Court. It was held in a case Lilaram Ladakmal v. Wahdumal Assudomal (A I R 1938 Sind 209) that mere fact that complaint mentions wrong sections of wrong Acts does not prevent a Court from taking cognizance of offence under right section of right Act. The next case referred tai me on behalf of the applicant Osman Jan is Agha Nazarali Sultan Muhammad v. Emperor (A I R 1941 Sind 186) it was held that it was for the Magistrate to decide upon the facts alleged, what is the offence alleged, what section of the Penal Code is the appropriate section. It is not for the first informant or, indeed, the complainant, if a complaint is made, to determine the offence or the jurisdiction of the Court. The next case is Saeeduddin Qureshi v. The State (P L D 1963 Kar. 54). It was held in that case that a discharge of an accused person under section 253 (1), Cr. P. C. its liable to be set aside only if after examining the reasons for the discharge the Court is satisfied that they were not sound or that the finding was perverse or foolish. The case Durga Prasad v. Emperor (A I R 1935 All. 439) deals with powers of the District Judge to interfere under section 436 it is not limited to a point of law. It was further held that the prosecution as well as the defence are entitled to fair hearing. One more case relied upon on behalf of the applicant is Re: Harichandra Reddy (A I R 1938 Mad. 742), it was held that when an order of discharge is set aside and further enquiry order ed, the; enquiry recommences where it was left off at the time when the improper order of discharge was passed. Further enquiry does not mean merely an examination of witnesses, but a further consideration of the evidence. The last case referred to one in this connection is The Sate v. Yousuf Qamar (P L D 1962 Kar. 303). It. deals with hen offence punishable under section 406, P. P. C. and explains what would be the essential or necessary ingredients of this offence.

3. It is thus evident that the impugned order passed by the City and Additional District, Magistrate, Karachi, on 28th February 1964 in revision is based on sound and convincing reason while the discharge order passed by the trial Court on 8th November 1963 does not give cogent reasons. For all these reasons I find very little substance or material in this application and which is accordingly dismissed. Application dismissed.