' MUHAMMAD SADIQ LEGHARI, J.---The facts leading to this order, as appear from the record, are that Ali Hakimdin Ghulam Ali Mandviwala and Shamsi Builders Limited entered into an agreement on 28-8-1997 as first and second party respectively agreeing thereby to start building project upon the formers land measuring 43 acres 21 gamtas in Deh Landhi District Malir. The most relevant (5)
(6) terms of the agreement are reproduced below:--
(1) ..
(2)
(3)That the first party in part performance of the agreement hereby permits the second party to enter upon the said vacant land for the purposes of planning and developments and erect necessary fences and construct necessary buildings thereupon and to be there peacefully pending the completion of this transaction.
(4) That ultimately after completion of transaction of five acres by the first party in favour of a third party as contemplated by the first party, the second party shall embark on having the said land duly partitioned and converted into sikni and entered in Form II for residential purposes in the relevant revenue records with the Deputy Commissioner, Malir, and prepare necessary layout plans for submission to the relevant town planning authorities of Malir Development Authority, obtain its no-objection and approval and consequent no-objections and permissions of Karachi Building Control Authority and Karachi Water and Sewerage Board, enabling the second party to sell the plots, flats and houses in the scheme; and it is specifically agreed that the first party shall come forward whenever so called upon to sign necessary papers or give appropriate authorities to the second party to do so.
(5)That prior to advertisement and booking of plots in the scheme, both the parties shall open a joint account in the name of Project and both the parties shall also open separate accounts in their own names in a branch of a bank to be mutually decided, and all amounts for the booking and sale of plots in the scheme shall be collected by the second party and deposited in the project account. On the first and fifteenth day every English calendar month the amount received in the preceding month shall be transferred to the account of the parties as under till the full payment towards cost and land is made.
' After full payment of cost of land the second party shall be responsible to transfer 50% share of net profit to the first party as mentioned in clause (9) hereof.
(5) That for the purpose of computing net profit, it is agreed that from the gross receipts on account of sale plots, houses and flats firstly the price of land paid to or on behalf of the first party in the manner described in clauses (7-a) and (7-b) shall be deducted and then the expenses on account of actual cost of development, overheads, fees, Government charges, mark-up/ profit on loans obtained from SAPICO, and cost of construction will be deducted for which an account shall be rendered by the second party on monthly basis. The said monthly account shall also show the net profit distributable among the parties on equal basis.
(10) The first party shall be ready and willing to sign and execute all deeds of conveyance for the purposes of transferring all saleable plots, houses and flats in the scheme in favour of the persons and bodies corporate or otherwise as recommended by the second party.
2. After the agreement the parties started acting upon it. The project started by them was given name. "The Green Park Project", Joint account, required by the agreement was also open and operated. By the passage of time entire price of the land was paid to the owner of the land/ respondent.
3. After some period the builder issued seven cheques for the sum of Rs.One million each in favour of the owner of the land as his share of profit. As the cheques were from the joint account, the owner of the land also signed them and then presented for encashment but they were dishonoured for want of amount in the account.
4. He again presented the cheques at the instance of the builder on 4-11-2004 but they were dishonoured once again.
5. After that the parties entered into litigation and the owner of the land filed suit for recovery of the cheque amounts. He also lodged F.I.R. With Freer police against the directors of Messrs Sham Builders alleging therein substantially that they had dishonestly and deceitfully induced him and got the agreement, dated 28-8-1997 executed from him and started selling the files/properties of the project without his signatures and also were dishonestly not giving him his share of profit. He further alleged that when he took up the matter with them (builders) they dishonestly issued seven cheques of the joint account for the amount of one million each in his favour, which were dishonoured.
6. After the investigation the directors of Messrs Shamsi Builders including the applicant were challaned. After that applicants Mrs. Seema Fareed, Shaikh Muhammad Yousuf Shamsi and Shoib Alam Shamsi filed present application for quashment of the proceedings.
7. It was argued by Mr. Khawaja Shamsul Islam, the learned advocate for applicants that the entire dispute is of civil nature and civil litigation in respect thereof including the cheques is pending.
According to him the allegations are of violation of the terms of the agreement and cannot become crime warranting the criminal proceedings. He raised legal objections upon the applicability of section 489-F, P.P.C. Saying that it had been inserted in Pakistan Penal Code through Ordinance LXXXV of 2002, dated 25-10-2002 and ceased to the part of the law on repeal of the said Ordinance after expiry of four months under Article 89 of Constitution of Islamic Republic of Pakistan, 1973. Continuing with his submission, he contended that since Ordinance stood repealed in its entirity under Article 89 of the Constitution section 489-F, P.P.C. Being part thereof also went with it as such section 6A of the General Clauses Act could not save it from constitutional repeal.
8. Mr. Muhammad Ashraf Kazi, the learned Advocate for the land owner (respondent No.2) opposed the applicants arguing that the allegations levelled against the applicants and their associates by the owner of the land in his F.I.R. Do disclose the commission of the offence punishable under sections 406, 420 and 489-F, P.P.C. Therefore it is the right of the prosecution to get opportunity to prove the commission of offence against the accused including the applicants. He further contended that proceedings of the case could not be quashed when the allegations against the accused disclose the commission of the offence by the accused in the case.
9. Answering the legal plea taken by Mr. Khawaja he referred to section 6A of the General Clauses Act arguing that in fact the Ordinance which inserted section 489-F in Pakistan Penal Code was an amending law and new section inserted by way of amendment will not go with the repeal of the amending Ordinance.
10. There can be no two opinions on the legal question that proceedings can be quashed under section 561-A, Cr.P.C. Only in the cases which either do not disclose the commission of any offence or the evidence with the prosecution cannot result in conviction of the accused even if accepted as it is. Where the prosecution case is based on the evidence disclosing the commission of the offence with accusation it is right of the prosecution to get the opportunity for proving the allegations. The powers conferred upon the High Court are not to be utilized as to interrupt the ordinary course of the law in criminal proceedings. Pronouncement of the Hon'ble Supreme Court in the case of Tariq Mohsin and others reported in 2004 SCM R 1892 is clear on the point.
11. In present case although the parties entered into an agreement, dated 28-8-1997 yet they could commit any offence against each other while being contractual parties. There are express allegations by the respondent No.2 complainant in his F.I.R. That the applicants and others had dishonestly got the agreement executed by him and then started selling the properties of the project without his signatures and also they were dishonestly not giving him the share of profit required to be paid to him under the terms of the agreement. He also alleged that the cheques were issued to him dishonestly without availability of funds and the same were dishonoured. These allegations, apparently, disclose the misappropriation of the share of the profit of the owner of the land and dishonest issuance of the cheques which were not honoured which offences are punishable under sections 406 and 489-F, P.P.C. Therefore, it is right of the prosecution to get an opportunity for proving the allegations against the accused/applicants. Thus the proceedings sought to be quashed do not amount to an abuse of the process of law.
12. As concern the legal arguments, contention of Mr. Khawaja cannot be accepted. Ordinance LXXXV of 2002 grafted section 489-F in an existing enactment i.e. Pakistan Penal Code. Its status therefore was of amending law only. No doubt it stood repealed constitutionally under Article 89 of Constitution on expiry of four months but legally it did not take away with it the amendment planted in P.P.C. The previous enactment. It is settled position of law that repeal of amending law does not affect the amendments which had been brought into the main enactment. Section 6A General Clauses Act protects such amendment. Two cases from Indian jurisdiction can be referred to in support of
13. This view. They are Ferozi Lal Jain v. Man Mal and another reported in AIR 1970 SC 794 and Jethanand Betab v. State of Delhi AIR 1960 SC 89.
14. The result of above is that present is not the case where proceedings pending against applicants and others be quashed. Consequently the application fails and is dismissed.