' ANWAR ZAHEER JAMALI, J.---This application under section 561-A of the Code of Criminal Procedure, 1898, has been preferred by the applicant to impugn the order, dated 30-12-2004 passed by XVI-Civil Judge and Judicial Magistrate, (South) Karachi, whereby his application under section 249-A, Cr.P.C. Moved in Criminal Case No.257/03, arising out of F.I.R. No.310/2002 P.S. Darakhshan, Karachi, was dismissed. Further relief sought in the application is for acquittal of applicant and quashment of proceedings in the said Criminal case.
2. In brief, the relevant facts of the case are that on 28-11-2002, complainant Saadat Hayat Khan son of Karim Hayat Khan lodged the above-referred complaint under section 406, P.P.C. Against the applicant, wherein he stated that Naya Daur Jeep bearing Registration No.BP-9002 (old No.227- 413), manufacturing year 1976 with Chassis No.MDM-01327 and Engine No.62155, (hereinafter referred to as the said vehicle), owned by him, was delivered to the applicant due to his long cordial and family relationship with him. The applicant had initially taken the said vehicle in November, 1998 with the offer to purchase it and to pay its full value. However, later On, neither its price was paid nor the said vehicle was returned back to the complainant.
' According to the complainant, and as per details contained in the complaint, the applicant committed offence of criminal breach of trust, punishable under section 406, P.P.C.
3. It appears that during the pendency of proceedings in the said criminal case, the applicant moved an application under section 249-A, Cr.P.C. Before the trial Court on 25-9-2004, seeking acquittal of applicant/accused on various grounds detailed in the application, which was dismissed by the trial Court, vide its order, dated 30-12-2004.
4. Mr. Zahid F. Ebrahim, learned counsel for the applicant, has vehemently contended that as per complainant's own case, narrated in the F.I.R. No offence of criminal breach of trust, is made out against the applicant, inasmuch as in November, 1998 delivery of the said vehicle was voluntarily made to the applicant on the understanding that on settlement of its purchase price, it will be purchased by the applicant and sale consideration will be paid to the complainant. However, subsequently, the matter as to the quantum of its purchase price, could not be resolved, thus, despite heavy expenditure made by the applicant for upgrading the said vehicle, it was returned to the complainant, which fact is confirmed from the police record, showing recovery of the said vehicle from the office of Home Pack Courier Company, who were entrusted the said vehicle for its delivery to the complainant. Learned counsel further made reference to the plaint in Civil Suit No.315 of 2004 pending before the Court of II-Senior Civil Judge, Karachi South, which has been instituted by the complainant Saadat Hayat Khan against the applicant Wasim Akram, which proves the fact beyond any shadow of doubt that the dispute, as regards the delivery, purchase or return of the said vehicle between complainant and applicant, is purely of civil nature, containing no element of criminal breach of trust on the part of the applicant. To fortify his submissions that in the given circumstances the proceedings against the applicant arising out of Crime No.310 of 2004, P.S. Darakhshan, are liable to be quashed, learned counsel has placed reliance on the following cases:--
(1) Muhammad Ali and another v. .Assistant Collector, Narowal and others (1987 SCM R 795), (2)
State through Advocate-General N.-W.F.P. v. Gulzar Ahmed and others (1998 SCM R 873) and (3)
Miraj Khan v. Gul Ahmed and 3 others (2000 SCM R 122).
Learned counsel Mr. Zahid F. Ebrahim lastly contended that delay of more than four years in lodging of F.I.R. Is yet another important factor, which proves the male fide of the complainant in filing of false complaint against the applicant and shows that ultimately on the basis of material available with the prosecution, there is no possibility of conviction of applicant for the charge levelled against him.
5. Mr. Aamir Jalil Zubedi, learned State counsel, while opposing this application for quashment of proceedings, did not dispute the pendency of civil suit between the applicant and the complainant relating to the same transaction of sale of the said vehicle. He further did not dispute that complainant has not furnished any plausible explanation for lodging of complaint after four years of the incident, while even the vehicle was returned by the applicant in January, 2002 through the transport company for its onward delivery to the complainant, which the complainant himself refused to accept. Learned State counsel, however, contended that since the said vehicle was taken away by the applicant to Lahore without paying its sale consideration to the complainant, thus, offence of criminal breach of trust was made out against the applicant and it was not a fit case for acquittal of applicant or quashment of proceedings.
6. I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record, which shows that the complainant has lodged the F.I.R. On 28-11-2002 in respect of the incident pertaining to the month of November, 1998. In the complaint itself, the complainant has specifically stated that the delivery of the said vehicle was made by him to the applicant voluntarily and on the understanding that if the said vehicle is approved by the applicant and its price is settled between the parties, it will be purchased by the applicant on payment of sale price. It is also an admitted position that subsequent to the lodging of such F.I.R. And during the pendency of criminal case, the complainant has also filed a suit for recovery of Rs.3,00,000 and damages in respect of the said vehicle, wherein, in paragraph 6 of the plaint, he has stated as under:-- "(6) That in November, 1998 the market price of the said Jeep was Rs.4,00,000 but due to good relation the plaintiff offered the defendant to pay Rs.3,00,000 as sale price or alternatively deliver the said Jeep back to the plaintiff. The defendant neither paid the said offer price nor delivered the said Jeep to the plaintiff. He also damaged the said Jeep by replacement of Engine and Chassis as the plaintiff had learnt from different reliable sources."
These facts coupled with the fact that the said vehicle has been recovered by the police during investigation from the office of courier service, are sufficient to show that the allegations of commission of offence of criminal breach of trust levelled against the applicant are concocted and aimed at causing harassm ent to him by filing criminal case at Karachi, otherwise the dispute as regards delivery and purchase or otherwise of the said vehicle, subsisting between the complainant and the applicant is of civil nature for which appropriate action has already been taken by the complainant before the Civil Court vide Suit No.315 of 2004.
7. After perusal of the whole case record and the cases cited at the bar, I am of the opinion that on the basis of material available with the prosecution, there is no possibility of conviction of the applicant in this case. Moreover, the dispute between the parties is of civil nature, therefore, pendency of the criminal proceedings against the applicant will be nothing but an abuse of process of law and harassm ent to him. For all these reasons, applicant is entitled to be acquitted and proceedings in the pending Criminal Case No.257 of 2003 are liable to be quashed.
8 Foregoing are the reasons for the short order passed on 23-5-2005.