' Applicant abovenamed has filed above petition for quashment of the proceedings pending against him and respondent No, 2, in the Court of Assistant Commissioner and S. D. M. (Central), Karachi, in shape of Cr. Case No, 176/82, Fateh Muhammad v. Hakeem Ahmed Khan and another under section 420, P. P. C. The facts leading to the filing of the above petition, as disclosed in the private complaint in question are as follows : ' That the (Respondent No, 1) complainant is the sole proprietor of a construction Company under the name and style of "Zaman and Co." which is registered with M. E. S., Karachi Shipyard, K. E. S. C., K. M. C., Sind Social Security etc., and he is also doing the construction works of the private concerns. That unfortunately due to the good terms of the complainant with Applicant (Appellant No, 1), the complainant had orally undertaken, sometimes in the first week of January, 1981, to construct the extension of the back portion of the building of the Accused No, 1 situated in Amil Colony No, 1, Soldier Bazar, Karachi, in presence of (Respondent No, 2) and witnesses Sabir and Ismail that prior to the start of construction work, the complainant got made an estimate of the entire cost of the said required construction works, which was approved by accused No, 1 and thereafter the work was started with full speed and zeal. That the accused No, 1 paid in all Rs, 20,000 (Rupees twenty thousand) in two instalments in cash against receipt, within a period of five months and after the second payment the accused No, 1 before leaving for Mecca for the performance of Umrah asked the complainant to continue the construction works during his absence, also assuring the complainvnt to make payment in full on return from Harem Sharif. That at the time accused No, 1 was about to start for Harem Sharif, the complainant demanded further payment for the works done so far, as per abstract of cost showing the works done so far and the works to be done in future. The accused No, 1, therefore, paid Rs, 10000 (Rupees ten thousand) in cash more, on account against receipt to the complainant leaving a balance of about Rs, 1,48,606 (Rupees on lac forty-eight thousand six hundred and six) including cost of iron, dismantling and disposal of refuse out of the total estimated cost of Rs, 1,78,606 (Rupees one lac seventy-eight thousand six hundred and six only).
That after the performance of Umrah, when accused No, I came back from Haram Sharif, the complainant contracted him for the payment of balance amount, but the said accused No, I put off the payment and settlement of account from time to time and ultimately on 11th July, 1981, at about 5/6 p.m. When the complainant alongwith accused No, 2 and witness Ismail went to the residence of accused No, 1, where witness Jamil also was present and asked the said accused No, 1, for the settlement of account and payment, the accused No, 1 instead of settlement of account and payment of dues pressed the complainant for the completion of the remaining work, whereupon the complainant replied, that he would not re-start construction without payment for the works done and progressive payment from day to day. Thereafter there was exchange of hot words between the complainant and accused No, 1, who told the complainant thus "You Badmash get out. I will not pay you any thing and shall kill you with revolver." Accused No, 1 further ordered his son to bring a loaded revolver whereupon his son ran inside. Thereafter the complainant alongwith accused No, 2 and the said witness Muhammad Ismail left the place, for avoidance of breach of peace and for the safety of his life. The complainant left at the site, building material and other articles valuing about Rs, 26,000 (Rupees twenty-six thousand). That the complainant has no courage to go at the spot and get back the said building materials and articles mentioned in Annexure 'B' due to the fear and wrath of accused No, 1, who has always ready revolver and other arms to injure the complainant. That the complainant sent a written complaint dated 12th July, 1981 to the S. H.
0. P. S. Soldier Bazar against accused No, 1 and he also sent a legal notice dated 13th July, 1981 to accused No, 1, which were duly received by the addressee. That on receipt of the said letter dated 13th July, 1981 (Annexure 'D') accused No, I gained over 'complainant's brother Sami Muhammad accused No, 2, who was the employee of the complainant as his Supervisor of various works, and accused No, 1 in collusion with accused No, 2 sent the replies dated 21st July, 1981 and 22nd July, 1981 through his Advocate to the Advocate of the complainant, denying the very entrustment of construction works to complainant saying, that he has given the contract of construction works to accused No, 2 and not to the complainant, stating further therein, that he had/has n concern whatsoever with the complainant in respect of the said construction contract and that he had paid Rs, 1,10,000 (Rupees one lac and ten thousand) to accused No, 2 for the works, which were going on beside the payment of Rs, 10,000 (Rupees ten thousand) made by accused No, 1 before his departure for Umrah. In the said letter dated 21st July, 1981 accused No, 1 concocted a false and incredible defence. That the complainant sent a legal notice, dated 20th July, 1981 to accused No, 2 stating therein the facts of legal notice (Annexure 'C') to accused No, 1, his position as the employee of the complainant and his collusiveness with the accused No, 1 for his wrongful gain and cheating the complainant in collusion with accused No, 1 despite being the brother and the employee of the complainant. In response to the said letter dated 20th July, 1981 accused No, 2 made a reply dated 27th July, 1981 denying all the charges levelled in the said letter and claimed to be the partner of the complainant in his works. That to complete the act of collusive cheating by both the accused of the complainant, putting the latter to the wrongful loss of Rs, 1,48,606 (Rupees one lac forty-eight thousand six hundred and six) besides the cost of building materials etc. Valuing Rs, 26,000 (Rupees twenty-six thousand only) as mentioned in Annexure 'B' accused No, 1 sent a legal notice, dated 29th July, 1981 alongwith photostat copy of an agreement of termination of a non-existing contract said to have been executed by both the accused persons falsely showing, that the contract of work for construction in question entered into between them and terminated by their mutual consent and that there was nothing due from accused No, 1 to accused No, 2, in respect of the said construction work, photostat copies of the said letter and an agreement of termination of contract are filed and marked Annexures 'I' and T, respectively. That from the perusal of Annexures `E', and T it is evident, that both the accused in collusion with one another cheated the complainant to the tune of Rs, 1,48,606 (Rupees one lac forty-eight thousand six hundred and six), besides the cost of building materials etc. Valuing Rs, 26,000 (Rupees twenty-six thousand) as mentioned in Annexure 'B', by falsely stating in their letters that no contract for the said construction was entered into between the complainant and accused No, 1, but the contract was entered into between the accused persons and that accused No, 2 was not the employee (as Supervisor) of the complainant. It is asserted in the said complaint, that the contract of construction in question was given to the complainant only by accused No, 1 and accused No, 2 was working as a mere employee, as supervisor of the various works of the complainant, who is the sole owner of Zaman and Co. And that at the relevant time accused No, 2 was also supervising the construction work as employee of Zaman and Co. In Karachi Shipyard in connection with the construction of Apprentice Training School, for which two gate passes in the name of accused No, 2 in connection with construction works then going on site of the Karachi Shipyard compound, were issued. That on the receipt of letter dated 21st July, 1981 and 22nd July, 1981 (Annexures `E' and 'F') from accused No, 1 the complainant was convinced that accused No, 2 was won over by accused No, 1 and they were in complete collusion with another for their wrongful gain in order to cheat the complainant and as such the complainant sent a legal notice dated 20th July, 1981 (Annexure to accused No, 2 terminating his service and calling upon him to return the said two Gate Passes of the Karachi Shipyard as mentioned in paras. Nos. 9 and 10 of the said Annexure '0'. But despite the said letter Annexure 'G') the accused No, 2 did not return the said two gate passes, he complainant entered into correspondence with the Karachi Shipyard uthority for the seizure of the gate passes from the said ex-employee Accused No, 2) of the complainant. That when the construction peration of the building of accused No, 1 was going on, accused No, 2 s employee of the complainant was generally and mostly supervising be construction works of the Karachi Shipyard and he used to issue erchis to the Bajri and Reti suppliers with his signatures on them and e also used to enter the Karachi Shipyard alongwith labours. These erchis used to be returned to the complainant for the payment of the supply of Bajris and Reties etc. That the complainant was the sole ontractor in respect of the construction of the extension of the back portion of the building of the accused No, 1 and in this connection the complainant purchased the building materials against vouchers. That from the letter Annexure '1' dated 29th July, 1981 coupled with Annexure from the Advocate of the accused No, 1 to the Advocate of the complainant, it can be logically inferred that the termination of ficticious contract by mutual consent of both the accused is naturally the result after sufficient illegal payment by accused No, 1 to accused No, 2 and after the notice dated 29th July, 1981 (Annexure 'C') from the Advocate of the complainant to accused No, 2, with copy to accused No, 1 dated 20th July, 1981 (Annexure `G') to the detriment and wrongful loss of the complainant and wrongful gain of both the accused persons. That despite the fact that the said construction work was given by accused No, 1 to the complainant, as the investment of Capital over purchase of building materials, payment wages to the labours and petty contractors and the status of accused No, 2 as employee of the complainant as discussed above as is evident from annexures filed, accused Nos. 1 and 2 in collusion with one another forged a false document Annexure `J' purporting to be a termination of Agreement of contract of work. The so-called agreement of Contract between accused Nos. 1 and 2 never saw the sunlight nor it ever came to existence and as such this document is nothing short of fabrication of imaginary falsehood for the purpose of cheating the complainant by the accused in collusion with one another with the result, that the complainant is cheated to the tune of Rs, 1,48,606 (Rupees one lac forty eight thousand six hundred and six) besides building materials etc. Valuing about Rs, 26,000 (Rupees twenty-six thousand left at the site by the complainant on 11th July, 1981, as is evident from the statement of account filed. That the common friends and relations having learnt about the dispute between the parties tried their best for the reconciliation and making amends for the clearance of all the dues of the complainant, who at the instance of common well-wishers of both the parties sent a final registered legal notice with A/D and under Certificate of Posting dated 5th September, 1981 to accused No, 2 clearing and clarifying the entire position, giving the latter full chance to make amends, but despite the due receipt of the said notice, the accused No, 2 made no reply whatsoever in writing, but he contacted number of common relations and friends promising to meet the complainant for the reconciliation, but he simply delayed the matter and did not contact the complainant so far. The negotiation for compromise through various persons both in writing and orally continued for a long time without any good result with the result that months passed away, but the compromise could not take place and hence the delay in filing of the case. That number of common relations and friends intervened in the matter, but to adamant and dishonest attitude of accused No, 2 all attempts at compromise proved futile, despite protracted attempt for a long time by the common well-wishers of the parties.
' The prayer clause in the said complaint reads as follows : ' It is, therefore, prayed that cognizance be taken against the accused persons warrant of arrest be issued against them and they may be put on trial and punished according to law for cheating the complainant to the tune of about Rs, 1,48,606. (Rupees one lac forty-eight thousand six hundred and six) and for illegally withholding the building materials etc. Worth about Rs, 26,000. (Rupees twenty-six thousand) left at the site by the complainant and for damages of reputation lowering the complainant in the estimation of the Society assessed at Rs, 25,000 (Rupees twenty-five thousand).
' The learned trial Court passed the order on the above complaint of Respondent No, 1, as follows : "A complaint has been filed by Fateh Muhammad of Zaman and Co. Under sections 420/471/568/34, P. P. C. After the enquiry a prima facie case under section 420, P. P. C. Has been made out. Register the case under section 420, P. P. C. Against Hakim Jamshed and Sami. Issue summons in their names to appear before the Court on 17th May, 1982."
' In view of the above orders dated 13th April, 1982 of the learned trial Court, appellant has filed the above petition for quashment of the said proceedings on the grounds mentioned in above petition.
' Mr. A. K. Brohi, the learned counsel for the applicant in support of the above petition submitted as under :
(a) That complaint in question does not at all disclose commission of offence under section 420, P.
P. C. By applicant. "b) That police did not take any action against applicant under section 420, P. P. C. On report alleged to have been lodged by the Respondent No, 1.
(c) That false defence by itself would not amount to any offence. In support of this reliance placed on 1983 P Cr. L J 132 and 484.
(d) That prima facie dispute between the parties is civil dispute, as a result of alleged civil contract for construction and since cognizance was taken on private complaint by the learned trial Court, who issued process under section 420, P. P. C. Moving of application under section 429, Cr. P. C.
Before the said Court would be exercise in futility and the case of Honourable Supreme Court reported in 1970 SCM R 94, is not at all applicable to above petition and consequently above petition is maintainable. In support of these contentions the learned counsel for appellant relied upon case reported in 1978 P Cr. L J 143, 1983 P Cr. L J 132/484. Mr. Azizullah Shaikh, the learned counsel for respondent No, 1, on the other hand submitted as follows : ' That contract in question was between respondent No, 1 and present applicant, who initially paid Rs, 30,000 in all by instalment of Rs, 10,000 at each time, before he went for Umrah to respondent No,
1. However dispute arose between them after return of applicant from Umrah and ultimately respondent No, I lodged complaint with police on 12th July, 1981 after legal notice dated 11th July, 1981. On receipt of legal notice, applicant and respondent No, 2 got in collusion to deceive respondent No, 1 and entered into bogus agreement dated 18th July, 1981 by which both of them have cheated the respondent No, 1 in order to cause wrongful loss to respondent No, 1 in respect of said contract of construction and as such complaint prima fade discloses offence committed by appellant and respondent No, 2 under section 420, P. P. C. And consequently learned trial court has rightly taken cognizance of the complaint under section 420, P. P. C. And therefore above petition is not maintainable, as it would amount to staffing of prosecution, before respondent No, 1, can lead his entire evidence, in support of his complaint in question.
' The learned Advocate appearing for the State also adopted the arguments advanced by the learned Advocate for respondent No, 1 and submitted that above petition is liable to be dismissed.
' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court i,e, complaint, statements recorded under section 202, Cr. P. C. And cases cited by the learned Advocates for the applicant.
' The main contention of the learned Advocate for respondent No, 1 before me was, that on account of agreement dated 18th July, 1981, applicant and respondent No, 2 entered in collusion to cheat the respondent No, 1 and to deprive respondent No, 1 of construction contract.
' In order to appreciate above arguments of the learned counsel, I would reproduce provisions of section 415, P. P. C. Which describes cheating.
"Cheating.-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".
In light of above definition of cheating, I have very carefully gone through agreement dated 18th July, 1981 entered between applicant and respondent No,
2. In my opinion, respondent No, 1 was in no way induced to deliver any property to any person nor he was induced to consent that any person shall retain any property on the basis of agreement dated 18th July, 1981. In fact dispute between the applicant and respondent No, 1 in respect of the alleged contract started much prior to this agreement between applicant and respondent No,
2. Basically said dispute is civil dispute, on account of alleged breach of contract between applicant and respondent No, 1 and the said dispute has nothing to do with existence or non-existence of the agreement, dated 18th July, 1981. In view of this conclusions of mine, the complaint filed by respondent No, 1, cannot lead to conviction of applicant and/or respondent No, 2 under section 420, P. P. C. And as such continuance of said proceedings against applicant and respondent No, 2 in my opinion would amount to abuse of the process of the learned trial Court.
' Therefore, I allow the above petition and quash the proceedings pending against the applicant and respondent No, 2 in the Court of B Assistant Commissioner and S. D. M. (Central), Karachi in shape of Cr. Case No, 176/82 and discharge the bail bonds executed by applicant and respondent No, 2, in the said proceedings. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.