This is a petition under section 561-A, Cr.P.C. By Abdul Karim petitioner for quashment of a case registered against him under section 406/420, P.P.C. At Police Station Haram Gate, Multan on 29-1- 1973.
2. The brief facts of the case are that Umar Hayat respondent No.2 with a view to installing a Cotton Ginning and Pressing Factory at Garh Maharaja approached the Agricultural Development Bank of Pakistan, Jhang for a loan of Rs. 3 lacs for the purchase of a complete Cotton Ginning and Bailing Press from Abdul Karim, Proprietor of Messrs Faheem Engineering Company Limited, Multan (the petitioner). In accordance with the arrangement arrived at by Umar Hayat respondent with the Agricultural Development Bank of Pakistan, the full price of Rs. 3 lacs was paid to Abdul Karim petitioner through the said Bank after Order No. 944, dated 12-9-1972 was placed for the purchase of the said machinery. According to the contract Abdul Karim petitioner had to supply full cotton ginning and bailing press within three months from the date of the said order. However, within the stipulated time, Abdul Karim petitioner only delivered a portion of the machinery but failed to deliver the temper chain, three shafts, bed pump (complete), two cylinders--- two Kanghis and Pankhis. Later, when Umar Hayat respondent visited Abdul Karim's factory he found the said ginning and bailing press parts lying in the petitioner's factory, but when the respondent requested for permission to take away, the petitioner refused to deliver over its possession. The respondent then came to know that the petitioner had agreed to sell the said machinery to another party at a high price. Accordingly, the respondent registered a case against the petitioner at Police Station Haram Gate, Muitan under section 406/420 P.P.C. On 29-1-1973. The balance machinery parts which were to be delivered by the petitioner to the respondent, were then delivered on Superdari to the respondent by the Court. On 10-4-1973 Ch. Niaz Ahmad, Inspector Police, during investigation held that the case was one of a civil nature and that no offence was made out. He accordingly recommended the case for cancellation. Notwithstanding this recommendation, the P. D. S. P.
Branch submitted the challan in Court on 24-11-1975. Being aggrieved by the prosecution, the petitioner filed a petition for quashment, which is now before me for disposal.
3. The learned counsel for the petitioner has submitted that the matter between the parties, as is evident from the various documents on the lower Court record, which is now before this Court, conclusively shows that the matter is one of a civil nature. It was further submitted that the full and complete cotton ginning, and bailing press was delivered the respondent, as is obvious Form A.C.F.
178 of Agricultural Development Bank of Pakistan, which appears on the record and which has been exhibited by the lower Court as Exh. D.B. On the basis of this form, it was submitted that the full cotton ginning and bailing press was delivered to the respondent, as the respondent was not supposed to sign the form according to the instructions contained in that form unless and until he had received the full cotton ginning and bailing press. It was further submitted that the respondent had by registering the police case, taken away other machinery belonging to the petitioner not covered by the earlier agreement, for which he was liable to pay to the petitioner a separate sum of Rs.1,40,000. It was urged that by a subterfuge, the respondent had pretended that certain parts of the contracted machinery were not delivered, whereas actually he had used that as a device to secure machinery parts over and above the contracted machinery which had already been delivered to him and in which respect he had succeeded. It was next contended that respondent No. 2 who was a President of the Pakistan Peoples Party at Jhang had wielded his influence with the Police and though the Inspector had opined that the case was one of civil nature, he had prevailed upon the police administration to file the challan and to assist him to secure parts of machinery not covered by his original agreement in Superdari through Court. Lastly, on the face of an agreement, dated 18-1-1978 purporting to be executed between the petitioner, on the one hand, and one Nadir Khan, the alleged nephew of responde0t No. 2 on the other, it was asserted that it was admitted between the parties that the petitioner had not delivered the rims, cylinders, bed pumps and temper to respondent No. 2 under the original agreement and that the respondent had withheld a sum of Rs.1,40,000 in that respect and that the petitioner would deliver the s4id balance machinery to respondent No. 2 by 5-2-1973 and respondent No. 2 would pay Rupees One Lac to the petitioner on the date of delivery of the said balance machinery and the balance Rs.40,000 after the trial run was completed. In view of this agreement executed by the nephew of respondent No. 2 on the latter's behalf, it was submitted that the dispute was basically a civil dispute between the parties and that as the said parties had entered into another agreement on 15-1-1979 agreeing to submit the dispute about the petitioner's claim of Rs.1,40,000 to arbitration, the resolution of the dispute through criminal proceeding was unjustified, if not illegal. In the light of these cumulative circumstances, it was urged that the criminal proceedings against the petitioner deserved to be quashed.
4. Learned counsel for Umar Hayat respondent, was strongly opposed the petition, submitted that the petitioner who had received the full price of Rs.3 lacs had only delivered a part of the machinery to the respondent and after the price of machinery rose, he decided to withhold the balance of the cotton ginning and bailing press to the respondent and to sell it away to a third party. It was further submitted that the undelivered items of machinery were actual lying at the petitioner's factory at Multan, which the petitioner refused to deliver to the respondent, notwithstanding requests made to him to do so. Realising that the petitioner had converted and misappropriated his goods and was about to dispose them of to a third party, the respondent had no alternative but to lodge a report with Haram Gate Police Station, Multan, on 29-1-1976 against the petitioner under section 406/420, P.P.C. It was further submitted that the undelivered portion of the machinery as detailed in para. 2 above were ultimately granted to the respondent on Superdari by the Court on 30-1-1973. As regards the alleged case of the petitioner that the machinery parts taken by the respondent on Superdari were different from and taken over and in excess of the contracted goods, it was submitted that the same was a tissue of lies that the said plea was taken in order to create a defence to justify the non-delivery of the contracted goods to the respondent. As regards the alleged agreements, dated 18-1-1973 and 15-1-1979 (Annexures 'C' and 'E' respectively to the petition) between Abdul Karim petitioner and one Nadir Khan (purporting to act for Umar Hayat respondent), it was submitted that the said Nadir Khan was neither a partner nor attorney of the respondent and had no connection with the Sial Cotton Ginning Factory of the respondent and that the said two agreements had been trumped-up by the petitioner to create a defence for the criminal case. It was submitted that according to the first agreement, dated 18-1- 1973, Abdul Karim petitioner agreed to deliver by 5-2-1973, rims, cylinders, bed pumps and temper, the balance machinery according to the original agreement, in consideration of Rs.1,40,000 due and payable by Umar Hayat respondent to Abdul Karim which payment was to be made as follows: Rupees one lac at the time of delivery of the balance machinery and the balance of Rs.40,000 at the time of the. Completion of the trial run of the said machinery. In this connection it was urged that the full payment of Rupees Three Lacs had already been made by the respondent and through the Agricultural Development Bank of Pakistan, Multan to the petitioner immediately after the order and the question of the respondent agreeing to pay a further sum of Rupees One Lac Forty Thousand for the balance undelivered machinery did not arise. Further, as regards the alleged arbitration agreement dated 15-1-1979, it was submitted that the need for signing this agreement did not arise as A.D.B.P., Multan had made the full payment to the petitioner and, as admitted by the petitioner in para. (iv) of the petition, the balance machinery having been taken by the respondent in Superdari through Court on 30-1-1973, the petitioner and the respondent's claims were satisfied in full and there was no longer any need for arbitration. In the light of these various facts, it was submitted that the petition deserved to be dismissed.
4. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and respondent No. 2. Basically, there is no doubt that the matter is one of a civil nature. The respondent, through the Agricultural Development Bank of Pakistan had agreed to purchase a complete cotton ginning and bailing press from Abdul Karim petitioner, who is Proprietor of Faheem Engineering Company Limited, Multan. From facts elicited from the A.D.B.P., Jhang, through Deputy Registrar, Judicial of this Court, it appears that Rs.19,550 was paid by the respondent and the balance price of Rs.2,80,450 was paid by the bank on behalf of the respondent on 14-10-1972 through the Agricultural Development Bank of Pakistan, Multan, to the petitioner in full settlement of their Bill No. 2, dated 7-10-1972. The petitioner has nowhere in his petition stated that he did not receive the full price of Rs.3 lacs as alleged by the respondent in his F.I.R. It appears that due to some delay in the delivery of the complete cotton ginning and bailing press to the respondent, the respondent in hot haste lodged a police report against the petitioner with Police Station Haram Gate, Multan, under section 406/420, P.P.C. Alleging that the petitioner was out to sell the balance of his machinery to a third party at a higher price. There is nothing on the record to show that the petitioner had entered into any agreement with any third party to sell the balance machinery at a higher price, nor is there any evidence to that effect on the record. Prima facie therefore, any wrongful detention or conversion of the goods does not appear in circumstances.
Ch. Nazir Ahmad, Inspector Police also found, vide his report, dated 10-4-1973, that the case against the petitioner was one of a civil nature and that the same should be cancelled. Very likely the respondent was the President of the Pakistan Peoples Party at Jhang, he was able to prevail upon the P.D.S.P. Branch to challan the petitioner, which accounts for the challan being lodged 'in Court on 24-11-1975. During arguments, Umar Hayat, respondent in person admitted that he had received the balance machinery through the Court's order, dated 30-1-1973 granting him the same on Superdari. In these circumstances, it appears that the respondent has received his goods and that the petitioner is being unnecessarily harassed in criminal litigation over e simple breach of contract, which matter is basically of a civil nature.
5. The only matter that now remains for discussion are the alleged agreements, dated 18-1-1973 and 15-1-1979 (Annexures ---C--- and ---E--- respectively to the petition) referred to by the petitioner's counsel during his arguments. These agreements purport to be executed between Abdul Karim petitioner, on the one hand, and one Nadir Khan, acting for Umar Hayat respondent, on the other. In the first instance, the respondent does not admit these agreements, nor does he admit Nadir Khan as his agent or attorney authorised to sign any such agreements or to act for him, nor has the petitioner filed any document to show that Nadir Khan is the partner or attorney of respondent No. 2. Apart from this fact, the agreement, dated 18-1-1973 seems to suggest that certain balance machinery out of the original agreement was not delivered by the petitioner to the respondent initially' and for which the respondent withheld a sum of Rs.1,40,000 and that the parties had by the said agreement agreed to complete the original agreement, by the petitioner undertaking to deliver the balance machinery by 5-9-1973 and the respondent agreeing to pay for the same in two instalments of Rupees One Lac and Forty Thousand, respectively. In the first instance, as already submitted, the A.D.B.P., Multan, has paid the full amount to the petitioner with regard to the full cotton ginning and bailing press ordered by its Jhang Branch on behalf of the respondent. The question, therefore, of the respondent signing an agreement admitting his liability of Rs.1,40,000 in the said connection would hardly arise. Further, this document destroys the oral submission made by the learned counsel for the petitioner that the balance machinery taken on Superdari by him was different from and over and in excess of the contracted machinery. The petitioner, when questioned, also admitted that the machinery taken in Superdari by the respondent was the balance machinery. The enumeration may differ, but it is basically the same.
However, assuming this document was executed on 18-1-1973, as it purports to be, it is strange that it was never put to Umar Hayat respondent in cross--examination before the Magistrate when he appeared in Court on 14-3-1978 and gave evidence. It is, therefore, obvious that this document is a fabricated document. In any case, it does not bind the respondent as the petitioner has not been able to show that Nadir Khan was the partner or attorney of the respondent. Likewise so far as the arbitration agreement, dated 15-1-1979 is concerned, it is not understood why the respondent would sign the same as, by this date, not only the respondent had received the balance machinery, as admitted by the petitioner in para. 1(iv) of the petition, in Superdari through Court on 30-1-1973, but the full payment in respect thereof had already been made by the A.D.B.P. Multan, on his behalf. Strangely, this document seems to have cropped up after the respondent was examined in Court as a P.W. On 14-3-1978. This document also appears to be a fabricated) document. It appears that both these documents have been created for the purpose of this quashment petition with a view to bolster the case of the petitioner that the dispute between the parties is one of a civil nature. However, notwithstanding these disquieting features, the basic fact remains that the dispute between the parties is of a civil nature, that the respondent has received his full machinery and that the petitioner is being subjected to the harassment of a criminal litigation. The petitioner has, therefore, made out a case for 'quashment and, therefore, this petition must succeed.
6. For the foregoing reasons, this petition is accepted. The criminal proceedings pending against the petitioner under section 406/420, P.P.C. Are hereby quashed.