ABDUL HAKIM Versus ABDUL GHAFOOR AND 3 OTHERS
ORDER
1. ALLAHDINO G. MEMON, J. --This is a petition under section 417(2), Cr.P.C. for leave to appeal against order of acquittal, dated 26-9-1987 passed by the learned A . C. M. Court No. 10 (West) Karachi.
2. The brief facts giving rise to the present application are that on 25-9-1984 complainant/ applicant filed a direct complaint against the respondents Nos. 1 to 3 inter alia alleging therein, that they are his co-villagers, and that both the parties owned milk shops, and used to extend monetary help to each other. On 22/23rd January, 1984 respondent Ghulam Mohammad proposed that as they all were dealing in milk, they may purchase buffaloes in partnership, and that he would purchase buffaloes from Punjab. He further asked the complainant to pay Rs.50,000 as his half share, which proposal was accepted by the complainant. The complainant arranged for the said amount of Rs.50,000 and paid the same to the accused on 3-2-1984 in presence of Fateh Mohammed and Mohomed Rafiq. It was further alleged that the, amount was counted by all the three accused. That the accused promised to purchase and bring buffaloes to Karachi within a month's time but they failed to fulfil their promise. That the accused went on keeping him on false hopes, and ultimately accused Ghulam Mohomed arrived in Karachi on 14-7-1984 but he failed to purchase or bring buffaloes with him. That on 20-7-1984 a meeting was held by elders in the house of complainant in presence of Mohomed Rafiq, Fateh Mohomed, and Abdul Sattar, And when they decided the matter against the accused, accused lost temper and the complainant was beaten by them. Accused Abdul Ghafoor took out revolver, kept on the chest of the complainant, and expressed that they will finish him today. That during the struggle the accused persons took out purse of the complainant which contained Rs.2,000. The complainant had sustained injuries, and the matter was reported to P.S. North Nazimabad but no action was taken against the accused.
3. The learned Magistrate recorded statement of the complainant under section 200, Cr.P.C. and directed that the P.E. be held in the first instance. After recording statements of witnesses, Fateh Mohomed and Rafiq, the learned Magistrate was pleased to issue process against the respondents under sections 420 and 506, P.P.C. read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The respondents 1 to 3 appeared in the Court, and after the complainant /applicant was examined in the Court, an application under section 249-A, Cr.P.C. was moved, and the learned Magistrate after hearing the Advocates for the parties, acquitted the respondents on 20th September, 1987. The present application has been filed for leave to appeal against the above order.
4. We have heard Mr. S. Nasiruddin learned counsel for the complainant/applicant. It was contended by the learned counsel that the learned A.C.M. had decided the case in hot haste and had committed an illegality by not examining the witnesses cited in the complaint.
5. We have considered the contentions of the learned counsel and have gone through the calnplaint, statements of complainant and P.Ws. recorded during P.E., and the deposition of the complainant. The complaint as well as the statement of complainant recorded under section 200, Cr.P.C. and his deposition in Court clearly show that the parties are businessmen and they deal in selling milk. They have been extending monetary help to each other. There is nothing in the complaint as well as the evidence to show that the respondents had no intention to purchase buffaloes right from the beginning and therefore, it could not be said that they had dishonestly induced the complainant to deliver Rs.50,000 to them for the purpose of purchasing buffaloes. Moreover, the offences under section 420, P.P.C. and section 506, P.P.C. were distinct, and were not committed during the course of same transaction, therefore, the same could not be tried jointly. In the present case the matter clearly appears to be of civil nature and no useful purpose could be served even if the prosecution was allowed to continue. In Mohomed Ali and another v. Assistant Commissioner, Narowal and another 1987 S C M R 795 it was observed by their Lordships of the- Supreme Court that:-
6. "There is nothing on the record to indicate that at the time when the petitioners, Mohomed Amin and Mohomed Akram took the money from the complainant, they had no intention or were not in a position to. give the lease of the Cinema Canteen to the complainant."
7. Therefore, the proceedings under section 420/406, P.P.C. pending against the petitioners were quashed. In the present case apart from the above circumstances there was long delay in filing the complaint inasmuch as the money is said to have been paid to the respondents on 3-2-1984 while the complaint was filed on 25-9-1984. There is nothing on record to show that in fact the complainant had lodged any report at P.S. North Nazimabad as alleged by him. According to the complainant he had sustained injuries at the hands of the respondents but no medical certificate was produced nor there is any assertion in the complaint or the deposition of the complainant, that he had got himself examined by any doctor. There are also contradictions between the complaint and the deposition of the, complainant in Court.
8. In view of the above discussion we are of the considered view that the learned A.C.M. has given cogent reasons for acquitting the respondents 1 to 3 and the order does not call for interference. The application for leave to appeal is, therefore, dismissed in limine.
9. S.A./A-272/K ????????????????????????????????????????????????????????????????????????? Leave refused.