For the purposes of this application filed under section 561-A Cr.P.C., the following statement of facts would suffice.
2. Shaikh Muhammad Ateeq, son of applicant is engaged in construction business in the name and style of Messrs Crown Estate Agency and Builders. Shah Muhammad Qureshi, the complainant in Crime No.199 of 1986, Malir Extension Colony, Police Station, under section 420/406, P.P.C. Entered into a written contract with the said Shaikh Muhammad Ateeq for the construction over his Plot NoA-48, Malir, Karachi, who was paid a sum of Rs.35,000 in, advance, through Cheque No.025613, dated 28-5-1985, drawn at Habib Bank Ltd., Defence Society Branch, Karachi. No construction was, however, raised and on 31-5-1987, the said Muhammad Ateeq approached the complainant alongwith one Abdul Qadir and the present applicant, who was informed that the amount which he (Shah Muhammad Qureshi) had paid to Muhammad Ateeq was spent over the construction on the plot of Abdul Qadir, who was making efforts to obtain loan from House Building Finance Corporation. The complainant was then requested to advance a sum of Rs.1,00,000 (Rupees one lac only) more with promise to return the same within one month against the relevant documents of the plot of Abdul Oadir, which were deposited with him. This amount was also paid through cheques. It is alleged that Muhammad Ateeq, Abdul Qadir and the present applicant had cheated complainant Shah Muhammad Qureshi, who neither returned the aforesaid amount of Rs.1,35,000 nor raised construction of his plot. On 4-9-1986, complainant Shah Muhammad Qureshi lodged F.I.R. Against these persons. After investigation the case was sent up. The main accused viz., Shaikh Muhammad Ateeq, the son of the present applicant could not be arrested and he was sent up in absentia, under section 512, Cr.P.C. During the pendency of the case the applicant moved an application under section 249-A, Cr.P.C. Before the trial Court seeking his acquittal on the ground that the facts, as disclosed in F.I.R., even if accepted as gospel truth do not constitute an offence, and the liability if any, was purely of a civil nature. This application was disposed of by learned A.C.M. XI (East) Karachi, with the following order: "Heard both Defence Advocate and Assistant Attorney. Perused written grounds put forth by Defence Advocate and report of Asstt. Attorney dated 5-4-1990. Perusal of case file shows that charge has not yet been framed against the present accused as one of the co-accused who is son of the present accused is absconding. As such application under section 249-A Cr.P.C. Is hereby rejected being at premature stage."
It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court.
3. I have heard Mr. Syed Saeed Hasan Zaidi, learned counsel for applicant and Mr. S.ZA. Qureshi, learned counsel for State. The latter has opposed the prayer of applicant.
4. Section 249-A Cr.P.C. Relieves the Magistrate from the necessity of going on with the trial, if from the evidence available on record, he is convinced that a criminal charge cannot be sustained and there is no probability of the accused being convicted of any offence. The language in which this section is couched makes it clear that the Magistrate has got powers to acquit the accused even before any witness is examined, if from the material placed on record he is satisfied that the charge. Is groundless. If acting judiciously the Magistrate comes to the conclusion that the allegations, even if admitted to be true, do not constitute an offence or the allegations disclose a case of civil nature which is deliberately turned into a criminal offence as a handy means to put pressure for recovering dues shout making payment of court-fee, or for any other reason, there is nothing to prevent the Magistrate to acquit the accused at any stage of case, to save him from unnecessary harassm ent.
5. The perusal of the F.I.R. Discloses two transactions, one between complainant Shah Muhammad Qureshi, and Shaikh Muhammad Atiq, son of the applicant for raising construction over his plot situated in Malir. This contract was reduced into writing and the applicant was not a party to it. The second transaction relates to a loan of Rs.1,00,000 (Rupees one lac only), which was advanced to one Abdul Oadir for one month against the title-deeds of his plot which were deposited with complainant Shah Muhammad Qureshi. The only allegation against the applicant is that he had stood as one of the guarantors of this loan, which was not repaid.
6. A mere breach of contract cannot give rise to a criminal prosecution. The amount so secured is still repayable and can be recovered through a competent Civil Court. All moral wrongs are not necessarily criminal offences. The cases reported as R.C.P. Guignard v. The State and another PLD 1963 Kar. 868, Gul Jamal Khan and another v. Shah Jahan Khan 1971 P Cr. L J 943, Jamot Ghullam Muhammad and 3 others v. The State 1972 P Cr. L J 1130, Superintendent of Police, Federal Investigation Agency, Lahore and another v. Akhtar Hussain Bhutta PLD 1978 SC 193, and Muhammad Shat v. The State 1985 P Cr. L J 540; are clear on this subject. A distinction was drawn between a `criminal liability' and the. `civil liability' by Muhammad Ali Sayeed, J. (as he then was), in well-known case of Jamot Ghulam Muhammad and 3 others v. The State and another, reported in 1972 P Cr. L J 1130, in the following words: "I cannot but observe that ingredients of offences under sections 420, 403 and 406 are to a substantial extent available in most cases of breach of contract. Similarly a default by a borrower in repayment of a debt without admission of liability may also frequently partake of the character of an offence under section 406, P.P.C. There are numerous other instances of defaults in transactions purely civil in nature but which often appear to answer fully the ingredients of a criminal offence; and with a little clever glossing over every such case could be converted into an earnest prosecution. It is here that a Court is called upon to act with circumspection and to exercise the utmost care and caution before it is persuaded to employ its process for compelling attendance. This duty is heavier in private complaints, which relate to transactions apparently civil in nature The tendency to view a criminal action as a handy means to constrain a persons conduct cannot be under-scored We are still left with people in this country who are prepared to pay a price for their fair name and the spectre of a criminal prosecution can often compel them easily to relent on a stand which is otherwise well founded in law and in equity. It is this growing abuse of the process of a Criminal Court that has to be guarded against. The difficulty for the Court itself often arises on account of the overlapping nature of a civil and criminal cause. But yet with a prudent application of mind it should be possible to draw a distinction between the two. It is perhaps well to remember that the word "crime" suggests that not only should a man have brought about the forbidden act us but also that the line of conduct which he had voluntarily continued to that conclusion was inspired, or at least accompanied, by mens rea. The accused in other words, shall have been actuated by a legally reprehensible attitude of mind."
7. A broken promise, not being a criminal offence, the continuation of the criminal proceedings against the applicant is an abuse of process of law and consequently the proceedings pending against the applicant in the Court of C A.C.M. X1 (East) Karachi (Crime No.199 of 1986), Malir Extension Police Station, under section 420/406/34 P.P.C. Are quashed. The application made under section 561-A, Cr.P.C. Is accordingly allowed.