1. ' By this criminal miscellaneous application, the applicant Iqrar Ahmed and %Wain Ali have sought following relief:- "It is, therefore, prayed that this Honouable Court may be pleased to quash private complaint No,Nil of 1997 Sikandar Ali v. Iqrar Ahmed and another pending before Judicial Magistrate, Jacobabad under section 406/420, P.P.C., in the interest of justice."
2. ' The brief facts as stated in the application are that applicants deal in sale and purchase of cattle at Bakrapiri, Cattle Colony, Landhi, Karachi. On or about 9th August, 1997, the respondent No,2 filed direct complaint under sections 406, 420, P.P.C. Against applicant No,1 and one Imran alias Nana before the learned Judicial Magistrate, Jacobabad. The brief facts as disclosed in the complaint are reproduced herein below: "The complainant deals in cattle business. Both accused Iqrar and Imran used to purchase cattle from him. During this year about 1142 days prior to Eid-ul-Azha the accused went to complainant at his cattle pan and purchased 10 buffaloes, 15 bullocks, and 25 heifers valued Rs,3,62,000 in presence of P.Ws. Sahib Khan and Huzoor Bux. Accused Imran asked complainant to deliver the cattle to accused Iqrar and on return from Karachi he will make payment to him: In the past accused used to obtain cattle from the complainant on credit basis and because of that complainant handed over the bullocks to accused Iqrar and accused Imran stayed with complainant. The accused Iqrar did not return within 4 days therefore complainant along with accused Imran went to Karachi where both accused asked the complainant that they will make the payment after Eid after disposing of the cattle. After Eid complainant again went to accused at Karachi along with P.Ws. For the amount. The accused kept him on hopes and after two weeks accused informed him that they were in need of money, therefore, they had borrowed the cattle on false promise/assurance. The complainant went to Police Station Airport for report but police kept him on false hopes and ultimately refused to register the case."
3. ' The complaint was filed before the learned Judicial Magistrate, Jacobabad who passed the impugned order which is reproduced herein below: "ORDER ' Heard Mr. Abdul Sattar Attar Advocate for complainant and perused the direct complaint and statements of complainant under section 200, Cr.P.C. And witnesses under section 202, Cr.P.C.
4. ' The complainant and his witnesses have supported the version of direct complaint. Let the case be brought on regular file. Bailable warrants in the sum of Rs,10,000 (ten thousand only) be issued against accused Iqrar and Imran as the offence punishable under section 420/406, P.P.C.
5. (Sd.)
6. Judicial Magistrate Jacobabad"
7. ' I have heard Mr. Muhammad Ashraf Kazi, learned counsel for the applicants and Mr. Muhammad Saleh Fanhwar learned counsel on behalf of A.-G. For the State. None appeared for respondent No,2.
8. ' The perusal of record shows that the time, date and month of occurrence had not been disclosed in the complaint. In paras. Nos.4 and 5 of the complaint it is stated that applicant had cheated him by selling the cattle after a period of two weeks. It is also stated in para. No,6 of the complaint that applicant refused to pay him money involved in the transaction. Thus, no offence of cheating or breach of trust was made out and in order to circumvent civil liability, criminal prosecution was launched which is not permitted by law. For constituting a criminal offence mensrea is essential ingredient which is lacking in the present case.
9. Mere breach of promise does not come within the ambit of criminal liability.
10. ' Before issuing process against accused persons in the private complaint the Judicial Magistrate was under an statutory obligation as contemplated under section 202, Cr.P.C. To satisfy himself for the purpose of ascertaining the truth or falsehood of the accusations made in the complaint and should not have permitted a civil litigation to be converted into criminal litigation.
11. ' Admittedly the parties were on friendly terms. There is no allegation of misrepresentation in the complaint. Mere failure to pay the amount does not necessarily mean any dishonest intention on the part of applicants. Mere inability to pay or at worst, a refusal on the part of applicants to pay the outstanding amount could not give rise to criminal liability. The complainant in the case in hand agreed to receive the price of cattle. Even if there was any entrustment it was the purpose of transaction of sale. It, thus, gave rise to civil liability only.
12. ' The upshot of the above discussion is that prima facie no offence under sections 420, 406, P.P.C.
13. Was made out against the present applicants. This application, therefore, merits to be allowed.
14. Consequently the above cr. Misc. Application is allowed and proceedings in case of Sikandar Ali v.
15. Iqrar Ahmed and another pending before learned Judicial Magistrate are quashed as the same are abuse of the process of Court, and it will , be expedient for the ends of justice to quash these proceedings.