The facts which form the background of this Reference and the Criminal Revision are that an agreement had allegedly entered into between Muhammad Azam Paracha on the one side and Muhammad Ali and Saleh Muhammad on the other side. The agreement purports to be in writing according to which Muhammad Azam Paracha was to purchase 100 bags of almond from Muhammad Ali and Saleh Muhammad. The agreement purports to have been executed at the shop of Muhammad Ali. Both the parties are dealers in almond in addition to the other business which they do. The suppliers have a shop in Judia Bazar, Karachi. It is said that in pursuance of the agreement Muhammad Azam Paracha paid Rs. 75,000 to Saleh Muhammad and thereafter demanded delivery of the goods which demand was not complied with and the balance of the price was also demanded. It is alleged that the balance of the price was also paid by Muhammad Azam Paracha in a hotel whereafter he insisted on immediate delivery of the goods. According to Muhammad Azam Paracha, Saleh Muhammad allegedly prevaricated and ultimately it was reported that Muhammad Ali had absconded.
2. On the above allegations a complaint was made by Muhammad Azam Paracha under section 420 read with section 34, P. P. C. .The trying Magistrate examined the complainant and to more witnesses where after he ordered process to issue.
3. Saleh Muhammad appeared and was released on bail. He preferred the Criminal Revision Application No. 180 of 1969 against the order dated the l5th of March 1969 by which process was ordered to be issued. That Revision Application was admitted to regular hearing and thereafter an interlocutory application was made for stay of further proceedings. When it came up before a learned Single Judge of this Court he rejected that application but ordered that final order may not be made. He observed as follows:- "Although the Revision Application has been admitted but I do not see any ground for-stay of the proceedings . . . . . . . . . . . . . . Let evidence be recorded. But the final order may not be passed till this application is disposed of."
4. No evidence has been recorded after the appearance of the accused, Saleh Muhammad, before the Court but steps were taken to get Muhammad Ali declared an absconder and also for the attachment of his property as well as the appointment of a receiver of his property. At this stage the trying Magistrate made a reference under section 435, Cr. P. C. To the District Magistrate and the District Magistrate has made the Criminal Reference No. 5562 of 1969. I have before me at present Criminal Revision Application No. 180 of 1969 as well as Reference No. 5562 of 1969.
The Assistant Advocate-General appearing for the State slated that the order of this Court that evidence be recorded should have been complied w)th before the District Magistrate made this reference. My feeling, however, was that the intention of the learned Judge was not to give a direction that further evidence be recorded but only to say that staying the proceedings was not proper. By abundant precaution and in deference to the purpose with which the order was made I have inquired from the learned Judge who has told me that his intention was only not to stay the proceedings.
5. Looking now at the merits of the case, I feel that neither in the complaint nor in the statement which the complainant has made there is anything to indicate that there was an intention of creating at the the of making the contract. The failure to deliver the goods and prevarication can be the consequence of many other factors which, if found true, may fix civil liabilities. I am inclined to agree with the reference made by the District Magistrate as well as with the stand taken by counsel for the applicant that this is not a case in which cheating in the criminal h sense can be said to have taken place.
6. Here I should note that parties are businessmen who are doing the same business, the accused persons have got their shop in Karachi and are admittedly dealing in almonds. As pointed out by counsel for the applicant even if all the facts alleged by the complainant are presumed, for the sake of argument to be true, they do not constitute an offence.
7. In conclusion, I accept the revision application as well as the reference and quash the proceedings. This order, however, will not have any effect on any rights or liabilities to which the parties may be entitled or subject.