1968 P Cr (PLP)

M. S. Baqir for Respondent. This petition is for quashing of the proceedings in a criminal case under sections 406 and 420 of the Pakistan Venal Code, pending in the Court of a Magistrate at Sahiwal and initiated on the complaint of Muhammad Sadiq, the respondent, before me. There is a prayer in the alternative that if the proceedings are not quashed the case may be transferred to the District Magistrate of some other district.

2. Muhammad Sadiq, respondent, filed a complaint on 17‑7‑1967 against Painda Khan, the petitioner before me and his son Adalat Khan on the following allegations: That the petitioner and his father who deal in the sale of tongas came to stay with the complainant about a fortnight before the filing of the complaint and the complainant struck a bargain with them for the purchase of a tonga for Rs. 1,

970. This amount was paid there and then in the presence of two witnesses, namely. Ch. Ismail and Booia: The Conga was to be supplied on 10‑7‑1967 but when it was not received the complainant went to the house of the accused and asked them to fulfil the contract. They first promised to do so but then stated that they had left the business of tongas and had consumed the amount and that they will pay it when it will be possible for them to do so.

3. The learned Magistrate after recording the preliminary evidence issued bailable warrants against the accused. The present petition was then moved.

4. According to the petitioner, Painda Khan, the case has been manoeuvred by his collateral, Mr. Bashir Ahmad who is a Magistrate posted at Layallpur. It is stated that there was litigation between Mr. Bashir Ahmad and the petitioner and his father and the petitioner had also made some complaints against Mr. Bashir Ahmad to the Chief Secretary. The proceedings against the petitioner and his father are, therefore, stated to be mala fide.

5. Learned counsel appearing for the petitioner has reiterated his stand taken in the petition that the proceedings are mala fide. He has also argued in the alternative that no offence is made out from the contents of the complaint itself and any proceedings in pursuance of this complaint would amount to the abuse of the process of the Court.

6. Mr. M. S. Baqir, appearing for the respondent, has stated that Mr. Bashir Ahmad is posted at Lyallpur and there is no data on this record to hold that the complaint against the petitioner and his father was manoeuvred by Mr. Bashir Ahmad. He has also argued that any order at this stage quashing the proceedings would amount to the stilling of the prosecution. He has, in this connection, relied on the judgment of the Supreme Court in Raja Hay Nawaz v. Muhammad Afzal etc. (P L D 1967 S C 354)

7. The assertion of Mr. M. S. Baqir that it is not possible to hold from the record that Mr. Bashir Ahmad has manoeuvred the complaint against the petitioner and his father, is not without A force. Some tangible evidence is required to told that the proceedings in this case are mala fide.

8. I have gone through the content; of the complaint and find that it does not disclose any offence under section 406 or

420. P. P. C. It is stated in the complaint that Painda Khan and his father deal with the sale of tongas. When the complainant pressed them to supply the tonga they expressed their inability to do so and promised to pay the money as soon as it was possible. In order to lay the foundation of a case of cheating it is necessary that it should appear from the complaint that the intention of the accused was fraudulent from the very beginning. It is the own case of the complainant that Painda Khan and his father dealt in (lie trade of supplying Congas Therefore, it cannot be said that when they took the money. they had made any false representation to the complainant a, a result of which he parted with his money. The case is clearly of a civil nature and the mere failure of the accused, to fulfil the contract will not make them criminally liable.

9. The petition succeeds.

10. The application is only on behalf of Painda Khan, but in exercise of my powers under section 439, Cr. P. C., I quash the proceedings against Adalat Khan also. Petition accepted.