' This is an application moved on behalf of Mirajuddin son of Sirajuddin and Shafiq Rehman son of Abdul Karim, under section 561-A Cr.P.C. For abashment of Criminal Case No,206 of 1985 under section 420/40/406/34. P.P.C. Pending in the Court of ACM No,3 Central at Karachi. Briefly, the facts giving rise to the application are that on 9-9-1986 Al-Haj Saifuddin moved an application in writing to the Crime Branch Karachi which complaint was incorporated under section 154 Cr.P.C. Booked on 9-9-1986 as F.I.R. No,385/86. In the F.I.R. The prosecution allegation unfolded the following facts:- "Statement of complainant under section 164, Cr.P.C. Received by the Crime Branch from one Saifuddin Ahmed son of Ahmed Deen resident of 416/18 Shamabad FB Area Karachi through PC Afzal Ali No,13076 which is as follows:- "I came across an advertisement in daily JANG in the year 1983 wherein Wahaj Velet Company 279 Block 13 F.B. Area Karachi, had advertised for need of capital. I visited the office of the company in order to get information and enquiry and there come across one Muhammad Ali Shah, Ch.Muhammad Ashraf and Mehrajuddin Khanzada. Muhammad Ali Shah told me that he is the Managing Director of the Company and the two other persons are the Directors That it was further told by Muhammad All Shah that our company manufactures perfume and cosmetics. That I knew Muhammad Ashraf prior to this meeting as he was serving with me in M.E.S. That both Muhammad Ashraf and Mehrajuddin Khanzada confirmed the contents of the talk of Muhammad Ali Shah. That both of them had also persuaded me to invest money in the company and he will get reasonable profit over it. I was influenced by the talks of Muhammad Ali Shah, Ch. Mmuhammad Ashraf and Mehrajuddin Rhanzada and got pay order of Rs,25,000 in the name of UBL Gulberg Branch Karachi and paid cash Rs,25,000 on 17-1-1984. That the receipt of the money in question was issued by Muhammad All Shah. That there was a written agreement on stamp paper between me and the company. Muhammad Ali Shah paid me profit from 1-1-1984 to 2-5-1984 at the rate of Rs,750 p.m.
That in May 1984 old agreement was cancelled and the new agreement was executed. That after three months the company failed to pay me profit. I visited the office of the company 3/4 times but I failed to see Muhammad Ali Shah. That I came across certain other persons at the office of the company who have also invested some amount in the company.
' That I became suspicious and I flatly refused to invest further amount in the company but I asked them to refund the amount which I had invested in the company. That Ch. Muhammad Ashraf, Mehrajuddin Khanzada and Dilawar Shah had continuously persisted me to invest some amount in the company but I failed to pay any heed. I visited the house of Muhammad Ali Shah and there I came across his wife Mst. Shahida Ali. She has also persuaded me to invest the money in company but I insisted that my invested amount may be refunded to me. That the other colleagues of Muhammad Ali Shah namely Tasleem, Shahid, Shafique and Dilawar Hussain used to avoid the debtors by one pretext or the other, if anybody persists to see Muhammad All Shah they used to threaten him with revolver or pistol. I tried my level best for refund of the invested amount but all my efforts ended in smoke. My complaint is against the aforesaid three persons who have misappropriated my Rs,25,000 and action according to law may be taken against them. Sd.
(in Urdu)
SHO Gulberg Karachi."
' The Police A.S.I. Ghulam Akbar of Crime Branch took up the investigation and challenged one Muhammad Ali Shah who is the main accused shown in the F.I.R. And present two applicants. The present applicants on 3-11-1987 moved application before the trial Magistrate under section 249-A, Cr.P.C. And prayed for acquittal of the accused-applicants on the ground that the investigating agency through the 1.0. In the case has submitted report under section 169, Cr.P.C. And that in the report it is shown as specified role is assigned to the applicants as such applicants are innocent and there are no prospectos in absence of prima facie case for any conviction in the case as far two applications are concerned. The application under section 249-A was rejected, hence the present application for abashment is made. Mr. Sardar Mohomed Ishaque Advocate for two applicants and Mr.Imam Bux Shaikh represents the State.
2. The learned counsel appearing for the applicants contended that the plain reading of the allegations made in the First Information Report did not make out prima facie case under the two punitive sections 420 and 406, P.P.C. He further contended that the report made by the complainant was delayed inordinately and he pointed out that the date of incident as given in the F.I.R. Was 19-11-1983 whereas the report was lodged on 9-94986. According to the complainant it was Muhammad Ali Shah to whom Rs,25,000 was paid under a receipt issued by Muhammed All Shah on 12-1-1984 for the purpose of investment in business being run under the name and style of "Dehaj Volet Company B-279, Block No,13, F.B. Area, Karachi and an advertisement to that effect was got published in the newspaper. According to complainant a written agreement was drawn and Muhammad Ali Shah was paying the profit from 1-1-1984 to 2-5-1984 towards the amount of Rs,25,000 invested by the complainant and paid to Muhammad Ali Shah. The profit received by the complainant was at the rate of Rs, 700 per month. In May 1984 the old agreement was cancelled and the new agreement was executed after about three months. The complainant did not receive the profit he, therefore, approached Muhammad Ali Shah and demanded return of the amount of Rs,25,000 invested by him. The return of amount was avoided which is not returned to him hence the complainant moved application for action against Muhammad Ali Shah and the present two applicants. The minute reading of the allegations in the application shows that the present two applicants have contributed and supported the information given by Muhammad Ali Shah with regard to the alleged concern.
3. I have heard the arguments of the learned counsel for the applicants and the State who have taken me through the documents on the police file and the learned counsel appearing for State has not controverted the contention raised by applicants' counsel on the merits of the case and have gone through the allegations set out in the complaint wherein no specific role to satisfy the ingredients of sections 420 and 406, P.P.C. Is, made out. Section 420, P.P.C. Reads as under:- "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
' Likewise Section 406, P.P.C. Reads as under:- "Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both."
' The criminal breach of trust is defined in section 405, P.P.C. Mr. Imam Bux the learned counsel representing the State after consulting the record has frankly conceded that the ingredients of sections 420 and 406 P.P.C. Are wanting and does not have material available in the police papers to substantiate the charges against the applicants. He also conceded that there is no evidence of entrustment of the amount of Rs,25,000 to the two applicants. Mr. Sardar Muhammad Ishaque, learned counsel for the applicants in support of his contention has placed on the record case of Muhammad Usman and another v. The State and another (1976 P Cr. L J 153). The observation in the cited case is at page 154 "what has got to be considered for the purpose of abashment of these proceedings is whether the complaint itself upon facts stated or even admitted could be construed to disclose no such offence for which process has been issued". From narration given out in the report and the documentary evidence available with the prosecution there is no material to connect the two applicants for the commission of alleged offences. It was argued by the applicants' counsel that the two applicants were not signatories to the receipt for the amount or the agreement executed between Muhammad Ali Shah and the complainant. The assertion of the learned counsel, therefore, is not without substance that no offence is made out and The facts giving rise to this Criminal Revision briefly are the transaction is of a civil nature and no criminal offence is made out. Mr. Imam Bux Shaikh, the learned counsel representing the State has supported the application and stated that the prosecution agency had informed the Court that prima facie evidence could not be collected against the two applicants. After haring the learned Advocates for both the parties, I am of the considered view that on the face of it no case against the two applicants appears to have been made out and the allegations against the applicants are groundless there appears no probability of the applicants being convicted for the alleged offences. Considering the applications moved before trial Court under section 249-A by the two applicants and after hearing the arguments and taking into consideration the relevant material there is no prima facie case against the applicants even if they will be put to trial, the case will certainly fail.
4. In view of the above discussion I feel satisfied and allow this application and quash the proceedings in Criminal Case No,206 of 1986 under sections 420 and 406, P.P.C. Pending in the Court of A A.C.M. No,3 Central Karachi in respect of the two applicants namely Mirajuddin and Shafiqur Rehman. As regards Muhammad Ali Shah, the trial Magistrate shall decide the case in accordance with law. Criminal Miscellaneous Application No,44/1988 was granted by me under a short order passed on 24-2-1988 and these are the reasons for that order. Criminal Misc.
Application No,44/88 is accordingly disposed of.