' A case F.I.R. No.37 of 2002 dated 12-2-2002 under sections 420/467, 468 and 471, P.P.C. Has been registered against the petitioner and co-accused on the written application of respondent No.2 Akhtar Ali Ansari alleging therein that the accused/petitioner and co-accused had sold plot through a registered sale-deed to him which was neither owned by them nor they had been in its possession.
2. The petitioner seeks quashment of the Said F.I.R. Through the instant petition.
3. Learned counsel for the petitioner argued that the offences mentioned in the F.I.R. Are not constituted against the petitioner. Further contends that the property mentioned in the F.I.R. Had been sold to the complainant through the registered sale-deed and at the time of sale the complainant had checked the record and ownership of the petitioner with regard to the said plot.
Further contended that the petitioner is vendee of the plot in dispute from Muhammad. Tariq and Muhammad Asif sons of Allah Bakhsh through registered sale-deed dated 16-3-1999 and the entries of the sale-deed had been incorporated in the Revenue Record. Further contended that it was a case of civil nature and there is no mens rea showing the intention of the petitioner to deprive him from the money. It was a transaction of sale and basic ingredients of section 420, P.P.C.
Were not made out. Further contended that the police has deleted the offence under sections 467, 468 and 471, P.P.C.
4. The learned Additional Advocate-General and DSP (Legal) & Investigating Officer Ishtiaq Hiraj vehemently opposed the argument of the learned counsel for the petitioner and supported the F.I.R. By contending that the alternate remedy is available to the petitioner. The instant petition is not competent.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. It is admitted position in the parawise comments that the petitioner had purchased this plot mentioned in the F.I.R. From Muhammad Tariq and Muhammad Asif sons of Allah Bakhsh through registered sale-deed No.1744/1 dated 16-3-1999 and the said property was sold out by the petitioners vide registered sale-deed No.3978/1 dated 17-5-2000 in the name of complainant Akhtar Ali and his wife. In paragraph No.2(iv) of the comments it has transpired that the said property purchased by the complainant and his wife has been further soldregistered sale-deed No.4114 dated 23-8-2003 in favour of Muhammad Asif and Rahim Bakhsh. From the comments submitted by the respondent it also reveals that offences under sections 467, 468/471, P.P.C. Vide report/Zimni dated 18-11-2003 had been omitted and the only offence under section 420, P.P.C.
Against the petitioner is available in the F.I.R. It would be appropriate to reproduce the provision of section 420, P.P.C. For further ready reference:- "S.420: Whoever cheats and thereby dishonestly induces the persons deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
7. For the purpose of cheating, dishonest intention at the time of performing an act or promise is to be inferred and not from subsequent non-fulfilment of the promise.
8. After deletion of the offences under sections 467, 468/471,1c P.P.C. It is established that there is no case of false, forged and fabricated document. To appreciate the commission of the offence under section 420, P.P.C. It would be useful to reproduce the definition of cheating as laid in case under section 415, P.P.C:-- "Section 415.---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 property, is said to cheat."
9. Theibid section has two pars. The first part is that a person may be induced to deliver any property to any person or to consent that any person shall retain any property. The second part of the section covers the class of acts of doing or omitting to do anything which the deceived would not do or omit to do if he was not so deceived. In the first part of the section the delivery of property with fraudulent and dishonest inducement is the essential ingredient to constitute an offence whereas in the second class of cases, the inducement must be intentional and it is settled proposition of law that the offence of cheating is not constituted if no deception was practiced and sustained pecuniary loss. In this contex reference can be made to case of "Muhammad Nasim Khan and another v. Fida Muhammad Khan and another" (1993 PCr.LJ 1795).
10. Fraudulent and dishonest intention/mens rea and the inducement at the time of performance of act are essential ingredients for the commission of offence of cheating and onus always lies on the prosecution . To prima facie establish the aforesaid ingredients for taking cognizance in the matter as laid down in case of "Bashir Dawood and 2 others v. Tanveer Ahmed and another" (2000 PCr.LJ 1230)
11. The bare perusal of the F.I.R. Shows the prosecution case of pure civil nature. It is admitted by the complainant in the F.I.R. That the petitioner and co-accused after receipt of the amount had transferred the property through registered sale-deed in favour of the complainant and his wife.
Out of the property situated in Khatoni Nos.86, 87, 88, Khasra Nos.14, 17 and Khewat Nos.65, 61, 66, Muhammad Tariq and Muhamma6 Asif sons of Allah Bakhsh vendor sold property in favour of Syed Fayyaz Hussain Zaidi, the petitioner and Khalid Masood Khan son of Ghulam Sarwar Khan Pathan vide two different sale-deeds dated 15-3-1999.
12. It is also an admitted position that after the purchase of the plot in dispute/the property of Akhtar Ali complainant and his wife Mst. Farzana sold back this property to Rahim Bakhsh son of Murad Bakhsh and Muhammad Asif son of Allah Bakhsh and now they are no more owners of the property. It means that the complainant has recovered his amount after the sale of the property in dispute in favour of the original vendor and get a case registered against the petitioner malafidely with the inclusion of Investigating Officer.
13. There is no cavil with the fact that the complainant himself made the bargain/agreement of sale with the petitioner, checked the record and inspected the site. Khalid Masood and Muhammad Asif had also sold the property in favour of the complainant.. The said Muhammad Asif is also a co- accused of the said F.I.R. And complainant himself made a statement in the Court and filed an application stating therein that he is not his accused and on his affidavit Muhammad Asif has been bailed out by the learned Judicial Magistrate.
14. Admittedly it is a dispute of civil nature which has been converted into' criminal proceedings with ulterior motives and in suchlike circumstances if on the basis of facts admitted and brought on record, no offence is made out then it would amount to be so abuse of the process of law to allow the prosecution to continue with the trial of the case and if facts of the case so warrant, the High Court can quash F.I.R. And it is not always necessary direct aggrieved person to first exl!Aust remedy available to him under the law. Reference can be made in this context to a case of Miraj Khan v. Gul Ahmed and 3 others 2000 SCM R 122.
15. The learned Additional Advoate-General when confronted with this legal and factual position of the case could not respond and admitted that no case under section 420, P.P.C. Again the petitioner is made out.
16. For the foregoing reasons this writ petition is accepted and as a result whereof the F.I.R. No.37 of 2002 registered under sections 467, 468, 471/420, P.P.C. At Police Station Chehliyak, Multan against the petitioner is hereby quashed. The petitioner may, if so advised, proceed against the delinquents under the law.
F.I.R. Quashed.