2. The learned counsel for the applicants has urged that the facts stated in the complaint bear out that there was a civil contract between the parties for purchase of 2,000 bags of Graphite Powder of Chinese origin and during the performance of that contract there was some dispute between the parties and there is no element of criminal liability in the matter in dispute between them. He has placed reliance on the case reported in PLJ 1979 Cr C 392; 1981 P Cr. L J 455 and 1980 P Cr. L J 905.
3. On the other hand, the learned counsel for the respondent/ complainant has vehemently resisted the application contending that the facts stated in the complaint do constitute a criminal liability against the applicants and it is not a matter for quashment of proceedings. He has made reference to certain clauses of the complaint to urge that there is element of cheating and criminal breach of trust in respect of the transaction entered into between the parties. He has urged that where there is element of criminal liability the criminal proceedings are not liable to be quashed, but the case has to be decided on merits. He has cited several authorities of the Supreme Court reported in PLD 1967 SC 317; 1968 SCMR 380 and 1972 SCMR 229 and an unreported order, dated 4-11-1984 in Criminal Petition for Leave to Appeal No. 62/K of 1984. He has also placed reliance on a case of this High Court reported in 1981 P Cr. L J 1273 and unreported Judgment of the learned Chief Justice of this High Court, dated 18-3-1981 in Criminal Miscellaneous Application No. 1075 of 1980.
4. In the case relied upon by the learned counsel for the applicants, proceedings of criminal cases were quashed on the grounds that the alleged facts indicated that there was dispute of civil nature between the parties and there was no element of criminal liability. The Supreme Court has laid down, in the cases reported in PLD 1967 SC 317, guiding principles for exercise of powers conferred under section 561-A, Cr.P.C. The most important extract in the Judgment may be reproduced. It reads as under:- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prime facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
This view has been reiterated by the Supreme Court in the unreported order in Criminal Petition for Leave to Appeal No. 62/K of 1984 (Syed Ejaz Hussain v. The State) In the case Gianchand v. The State and another reported in 1968 SCMR 380; cited by the learned counsel for respondent No. 1, it was held that determination of guilt or innocence of accused depends on totality of facts and circumstances revealed during trial and proceedings of a case should not be quashed unless that stage has reached. The learned counsel appearing for the State also has placed reliance on the principle laid down in this case. Similar view was approved in a case of Mohsin Ali and another v The State reported in 1972 SCMR 229. In the unreported case viz. Criminal Miscellaneous Application No. 1075 of 1980, the learned Chief Justice of this High Court dismissed an application under section 561-A, Cr.P.C. On the ground that the facts alleged needed to be enquired into for determining whether they did not constitute a criminal offence.
5. It follows from the aforesaid authorities that the proceedings of a criminal case are liable to be quashed if facts alleged do not make out any criminal liability. The present case has, therefore, to be examined to that perspective. The case against the applicants was initiated on a complaint under sections 406 and 420/34, P.P.C. Filed by respondent No. 1. He alleged that he was approached by the applicant Rajab Ali, who is a broker, for purchasing 2,000 bags of Graphite Powder of Chinese origin grades 270, 280 and 289 belonging to the applicants Qaiser Saleem and Nasir Kamal and he agreed to purchase the same at the price settled by them. He further alleged that he made payment of 41 lacs of rupees by way of cheques and received delivery of 1,189 bags of the Graphite Powder but did not receive delivery of the remaining stock. He therefore, filed the criminal case that he was cheated to the tune of Rs.4,68,125 by the applicants/ accused and also that they had committed criminal breach of trust and thereby committed offences punishable under section 406/420/34 of P.P.C. The offence of criminal breach of trust punishable under section 406, P.P.C. Is defined in section 405, P.P.C. As under:- "Sec. 405.--Criminal Breach of trust:-- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or convert to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of, trust."
It would appear that the facts alleged by the respondent /complainant do not make out a case that there was any criminal breach of trust in the dealings between the parties.
6. The offence of cheating punishable under section 420, P.P.C. Is defined under section 415, P..P.C.
As under:- "Sec. 415.--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 hard to that person in body, mind, reputation or property, is said to "cheat"."
The case of the respondent that he had received delivery of substantial goods in pursuance of the dealings between them and there is hardly any element of deception in the contract between the parties. Of course, fully supply of the goods was not made to the respondent but that did not amount to criminal breach of trust or deception as to attract the provisions of sections 406 and 420; P.P.C. Since the facts stated in the complaint do not make out a case of criminal liability, the proceedings are liable to be quashed under the provision of section 561-A, Cr.P.C. In the light of the authorities referred to above. Accordingly the application is allowed and the proceedings of the Criminal case No. 93 of 1981 pending in the Court of S.D.M., Liaquatabad, Karachi are quashed.