1992 PLP 591 (MLD)

Applicants Musharaf Ali and Nawab Ali were prosecuted by S.H.O. Garden P.S. in the Court of A.C.M. No.VI (South) Karachi, for the offence under section 420/406, P.P.C., on the report lodged by respondent No.l being Crime No.6 of 1989. The allegations against the applicants as disclosed in the F.I.R. are that they fraudulently induced respondent No.l and his friend Riaz Ahmed Beg to invest an amount in the business carried out by them under the, name and style of MA. Industries, Orangi Town, Karachi on profit and loss basis. It is the case of respondent No.l that he and his friend Riaz Ahmed Beg invested a sum of Rs.5,11,373 in the said business. They received a sum of Rs.2,49,440 and the remaining amount of Rs.3,41,749 alongwith the profit was still due. 1t is alleged that the parties had opened a current account which was being operated jointly, but the applicants in order to deprive the respondent No.l and his friend Riaz Ahmed Beg from their money started depositing the cheques in other account in violation of the terms contained in the written agreement. On the basis of these allegations the applicants were challaned in the Court of A.C.M. No.VI (South) Karachi to stand trial for the said offence. On 18‑1‑1990, the learned Magistrate framed charge against the applicants for the offence under section 420, P.P.C. and thereafter recorded the statement of respondent No.l as (P.W.1). The charge was subsequently amended and was framed for the offence under section 406, P.P.C. The applicants made an application seeking their acquittal under section 249‑A, Cr.P.C. before the trial Court on the ground that the transaction between the parties, if any, was purely of civil nature and consequently no offence against them is made out. This application was dismissed by the learned A.C.M. No.VI (South) Karachi, vide order, dated 23‑4‑1991. The applicants have now invoked the inherent jurisdiction of this Court by filing an application under section 561‑A, Cr.P.C. seeking the quashment of the proceedings pending against them in the Court of A.C.M. No.VI (South) Karachi. 2. 1 have heard Mr. Khurshid Haider Naqvi, learned counsel for applicants and Mr. S.ZA. Qureshi, learned counsel for State. I have also heard the respondent No.l in person, who has also placed on record his written statements.

3. In considering the question of quashing a criminal proceeding at the initial stage when the entire evidence is yet to be recorded, the allegations A against the accused have to be accepted on face value and then it is to be determined, if they constitute an offence. I' may usefully borrow the terse observations made by the Supreme Court in the well‑known case of M.S. Khawaja v. The State, reported in PLD 1965 SC 287, which are as follows: ‑‑ "To quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, the proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse", it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."

4. One of the important pronouncements on this point is to be found in Ghulam Muhammad v. Muzammal Khan and 4 others reported in PLD 1967 SC 317, wherein it was made clear that the powers given by section 561‑A, Cr.P.C. can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid in the procedural statute.

5. Therefore, the High Court should be extremely reluctant to interfere in a case in which prima facie evidence constituting an offence is disclosed. But, where a civil dispute is turned into a criminal case with a view to cause harassment to accused the High Court will be abdicating its function if it did B not come to the rescue of such persons.

6. On a plain reading of F.I.R. and the evidence of respondent No.l recorded by the trial Court, it seems to me as clear as daylight that the transaction between the parties is of civil nature and the allegations, even if accepted on face value, would not constitute an offence. Several rulings of different Courts can be cited in support of the contention raised by learned counsel for applicants, but I may refer only few out of them: ‑‑ (i)???????? Ragunath Puri v Emperor (AIR 1932 Patna 72); (ii)??????? Heywood v. Emperor (AIR 1942 Lah. 134); (iii)?????? War Niazi v. Riazuddin (PLD 1958 Lah. 738); (iv)?????? J.S. Daver v. Iqbal Qadir and another (PLD 1962 Pesh.162); (v)??????? Mehmood‑ul‑Hassan v. Imtiaz Khan and another (PLD 1963 Lah. ??????????? 481); (vi)?????? R.C.P Guignard v. The State and another (PLD 1963 Kar. 868); (vii)???? Abdul Rashid v. Moinuddin and another (1972 PCr.LJ 724); (viii)?? Abdul Rehman and another v. The State and another (1988 PCr.LJ 2208); (ix)?????? Mirajuddin and another v. The State (1989 PCr.LJ 441(2)); (x)??????? Haji Muhammad Latif v. Farman Ali and another (1990 SCMR 1299); (xi) Mian Muhammad Anwar etc. v. Mian Muhammad Waqar Monnoo and The State (1990 PCr.LJ 353); (xii) Abdul Ghafoor and others v. Raeesuddin and another (1991 MLD 376); (xiii) Shaikh Muhammad Taqi v. The State (1991 PCr.LJ 963).

7. As observed in M.M.S.T. Chidambaram Cheddar v. Shanmugham Pillai, reported in AIR 1938 Madras 129, mere deception or mere dishonesty is not a criminal offence. Every broken promise is, therefore, not a criminal offence. I cannot do better than quoting the observations made in the above case of Madras High Court: ‑‑ "In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every, immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crime in order to compel men to conform to a high standard of porbity in business dealings or to force them to execute their promises:"

8. In fact a simple case for rendition of accounts was turned into a ' criminal case with a view to recover the amount without making payment of court‑fee. The breach of the promise, if any, was purely a civil wrong and not a criminal offence.

9. For what has been said above, I accept the application made under section 561‑A, Cr.P.C. and quash the proceedings pending against the applicants in the Court of A.C.M. No.VI (South) Karachi, under section 420/406, P.P.C. arising out of Crime No.6 of 1989, Garden P.S. H.B.T./M‑1484/K ?????????????????????????????????????????????????????????????????????????????? Proceeding quashed.