MUHAMMAD ISHAQ Versus THE STATE
1. This is an application under section 561‑A, Cr.P.C. for quashment of proceedings pending against the applicant under section 420/406, P.P.C. before the Court of ACM‑VI Karachi East.
2. The brief facts of the case are that one Abdul Haq sent an application to the Deputy Martial Law Administrator Karachi in October, 1985 against present applicant and his sons alleging therein that during the course of purchase of handicrafts from manufacturers he came into contact with Mohammad Ishaq and his sons who were carrying on business of manufacture of handicrafts in the name and Style "Purse Corner" at 85 Madina Market, Garden Road, Karachi, when in April 1982 the complainant placed orders with them for supply of various items of over Rs.25 lacs and they made the applicant believe that the same items will be supplied in due course of time and demanded Rs.6 lacs as advance. On their assurance that the advance money will be spent only on the manufacturing of the items for which he shad placed orders, he paid Rs.6 lacs to Mohammad Ishaq and his sons and an agreement and a receipt was executed by Mohammad Ishaq on 31‑7‑1982 acknowledging to supply the items and the receipt of Rs.6 lacs. That the above three persons did not supply the items to the complainant and they had criminally misappropriated the amount of Rs.6 lacs and also caused loss of foreign exchange to the Government which could have been earned by exporting the above items. This application was incorporated in the 154, Cr.P.C. book on 29‑10‑1985.
3. After necessary investigation the applicant and his sons were challaned. They moved an application under section 249‑A, Cr.P.C. on which the sons of applicant Ishaq were acquitted while the case of the present applicant was kept pending. The present applicant again moved an application on 20‑10‑1986 under section 249‑A, Cr.P.C. but the same was rejected on 11‑12‑1986. The present application is for the quashment of the above proceedings.
4. I have considered the contentions of learned counsel and have gone through the complaint. .
5. It was contended by the learned counsel that the learned Magistrate committed an illegality by keeping the case against the applicant pending while his sons were acquitted. That there were dealing between the parties and the dispute was of civil nature and the criminal proceedings were mala fide and not maintainable.
6. As far as the first contention of the learned counsel is concerned, the learned counsel has not produced the first order passed on application under section 249‑A, Cr.P.C. by which the sons of present applicant were acquitted while the case against the present applicant was kept pending. However, it appears that the money was paid to the applicant only and his sons were in no way party to the transaction, therefore the allegations against the two A sets of accused being separate and since there was documentary evidence against the applicant the learned Magistrate was right in keeping the case against him pending. In the case Din Mohammed v. Mohammad Sharif and others (P L D 1979 BJ 12) it has been held that. in appropriate case Magistrate may if considered desirable record some evidence on any limited point relevant for the purpose of the decision of application under section 249‑A, Cr.P.C.
7. The above view was reaffirmed by this Court in the case of Habib Ahmed v. The State (NLR 1987 Criminal 588). The record shows that one witness namely Qadir Dad SIP has been examined and the other material witnesses including the complainant are yet to be examined. The certified copy of the case produced by the applicant shows that applicant has failed to appear before the trial Court on the last six hearings and therefore, no progress could be made in the case and therefore, it can be said that to some extent the applicant himself was also responsible for the delay in the disposal of the case. Since the material witnesses including the complainant are yet to be examined and the present quashment application appears to be premature and there are no grounds for quashing the proceedings at this stage, therefore, the application is accordingly dismissed in limine.
8. However, I direct the learned trial Magistrate to proceed with the matter expeditiously, and the applicant will be at liberty to move fresh application under section 249‑A, Cr.P.C. after the complainant and some material witnesses are examined.
9. S. A./ M‑346/ K Petition dismissed in limine