This order would dispose of two applications moved by the two accused who are facing trial under sections 406 and 420, P .P.C. In the Court of the Additional City Magistrate, Court No. II (South), Karachi.
2. The respondent No. 2 S.M. Naqi filed First Information Report wherein he has stated that he has business dealing with the local market. On 18-10-1981 Mr. Riaz Ahmad partner of Afzal Store who had business dealing with him phoned him for cash loan as he was in bad need of money and he requested him to advance Rs.25,000 for a week as Amanat. The said Riaz Ahmad sent his Manager Mr. Nazir Hasan Ansari, co-accused who according to the complainant is working in Afzal Store and passed the receipt in writing. The complainant the amount from the applicant Riaz Ahmad by means of a notic e. The notice was replied to by the applicant wherein he refused to admit the liability of the payment. He had also not admitted that Nazir Hasan Ansari was his employee. However , the police registered the case and challaned the case against the accused person. An application under section 249-A was moved in the Court of the learned Magistrate which was rejected, hence the present application.
3. From bare perusal of the First Information Report it is clear that it is a case of pure civil nature. The complainant has himself admitted in his complaint that there was business dealing between the parties. It is the contention of the applicant Riaz Ahmad that he had filed a civil suit for recovery of the amount against the respondent No. 2 but in order to counter-blast his suit the present criminal litigation has been initiated by him. Be as it may and without adverting to the merits of the case, the receipt and the First Information Report would show that it is the case of civil nature and the basic ingredients, of sections 406 and 420 not have been made out by the complainant in First Information Report. It is stated by the learned counsel for applicant that the respondent No. 2 has already filed a civil suit for recovery of this amount against the applicant which is pending in the civil Court.
Learned counsel appearing on behalf of the State has not also supported the order passed by the learned Magistrate rejecting the application and the criminal prosecution of the present.
For all the aforesaid reasons the applications are allowed and the proceedings pending in the Court of A.C.M.
Court No. II (South) Karachi are quashed.