1. On 4th of January, 1984 respondent Rustam son of Lal Khan filed a private complaint against the present applicant in the Court of the learned Additional District Magistrate, Jacobabad making the following allegations:----- "That about three months back, the accused showed me one House No. 6615-M, North Karachi, near Kala-School Little For School, Karachi, for sale, which was liked by me. I asked the accused to come at Jacobabad for negotiation and receiving consideration. He was known to mp. He came accordingly. He told me that he would sell house in sum of Rs.1,50,000. I paid to the accused Rs.50,000 (in words rupees fifty thousand) as advance in kind of currency notes before the witnesses. For the balance amount the accused agreed to receive at Karachi at the time of execution of sale-deed and handing over the possession. Thereafter, on so many occasions I visited the accused and asked for handing over the possession. In the end I accompanied by witnesses namely (1) Ghulam Sarwar son of Amir Ali Pathan, (2) Bahawal son of Wali Muhammad Panwhar, came to the accused and asked him to receive the balance amount, make the execution and hand over the possession. But the accused refused to hand over the house, in presence of the witnesses. He promised to refund the amount to us within a week, but accused did not return in spite of his promise and I again went alongwith witnesses and asked for the amount. The accused refused and said that he will not refund the amount and whatever I like to do so. Therefore, I lodged complaint that the accused had dishonestly defrauded me, hence legal action under section 420, P.P.C. May be taken against him in the interests of justice."
2. The learned Magistrate passed an order as follows:- "In order to ascertain the truth, I want to hold P.E. Into the matter. Put of to 9-1-1984. Complainant directed to produce his witness---s."
3. On the 9th January, 1984 the learned Additional District Magistrate passed the following order:-- "From the statements of complainant and his witnesses it appears that offence committed if any falls under section 420, P.P.C. Issue B.W. In the sum of Rs.5,000 against accused. Hearing fixed for 21- 1-1984. Complainant directed to attend."
4. The applicant before me was served and he appeared before the learned Additional District Magistrate and now has filed this petition for quashment of the proceedings against him.
5. Mr. Muhammad Hanif Khan, learned counsel has appeared before me this morning in support of this application and has contended that the whole story stated in the complaint is a figment of imagination. There has been no such transaction as stated in the complaint. He denied that his client has ever received a sum of Rs.50,000 as alleged. Counsel contends that on his own showing no receipt was passed. The learned counsel contends that if worst comes to worst it would be a case of purely civil nature for alleged breach of contract. I have no hesitation to agree with the learned counsel that if at all, it is a case of civil nature. No criminality or mens rea is involved. Even if there are overlapping jurisdiction of the criminal and civil Courts, in such a situation a criminal Court is hesitant and reluctant to interfere and leaves the matter to be decided by a competent civil Court.
6. From the mere perusal of the complaint as well as from the statement of Muhammad Asghar recorded under section 200, Cr.P.C. There does not seem to be a case of fraud. It has not been alleged by the complainant that Hashim Tayyab was not the owner of the flat or there was any misrepresentation in respect of the construction. The only misfeasance alleged is that two accused have sold the flat to someone else, but they are denying that they have sold the flat. Evidently, it is a matter of civil nature where the contract with the complainant has been breached. The complainant has not filed any notice which he had given to the accused party in respect of the said flat and he has waited from 1974 till 1977 before coming to the Court, as he filed the complaint only on 7th April, 1977. From the very complaint itself it appears that difference, have arisen between the parties in respect of cost of the flat which is alleged, by the complainant himself, to have increased. It appears that the process of the criminal Court is being abused by the complainant in order to pressurize the respondent to pay him the sum of Rs.15.000. But this purpose should have been achieved through the process of the civil Court and not through coercive process of the Criminal Court."
7. The observations quoted above apply on all fours to the facts of the present case. The only feature which puts the case at higher footing in favour of the applicant is that today in spite of notice and consent date given to the counsel by this Court on 17-12-1984 neither the complainant /respondent nor his counsel appears. In my view this is abuse of the process of the Court. Motive for launching these criminal A proceedings against the applicant, who is a resident of Karachi, and making an attempt to drag him in Court at Jacobabad seems to be some purpose other than the genuine grievance. The proceedings pending before the Additional District Magistrate, Jacobabad are quashed. The bail bonds furnished by the applicant stand cancelled.