MUHAMMAD ASHRAF Versus FAQIR MUHAMMAD
1. This is an application under section 561-A, Cr.P.C., for quashment of the proceedings of Case No.156/89. The State v. Muhammad Khalid Chaoudhry and another, under sections 452, 347, 342, 386 and 506-B, P.P.C., now pending before learned IVth Assistant Sessions Judge, Karachi South. The facts necessary for disposal of this application are as follows:--
2. Complainant Khalid Masood Shaikh, who is respondent No.2 in this application, on 24-1-1989 lodged F.I.R. No.25/1989 at Police Station Frere, Karachi under aforesaid sections stating therein that on18-1-1989 at about 8-30 a.m. he was present in his office No.205, Hotel Metro Pole, Club Road, Karachi, alongwith his staffs, when applicants Muhammad Khalid Choudhry, Muhammad Hanif, Muhammad Javed, Mahmood, Muhammad Yaseen, and 10/12 unknown persons, duly armed with deadly weapons, entered into his office and took away an amount of Rupees 25,000 from his drawer and also forced him to sign about eight cheques and vouchers, valued at Rs.10,00,000. It was also mentioned in the F.I.R. that the complainant was doing business, under the name and style of Messrs Pak Arab Trading Corporation since 1977, and on 21-12-1987 at request of applicants Muhammad Khalid Choudhry, Muhammad Hanif, and one another person, he entered into partnership with them for the purpose of Export of Textile and Cotton articles to other countries. It is alleged that, during the business it was discovered that above-named persons had caused loss to the firm. The prosecution has claimed that the incident was witnessed by P.Ws. Muhammad Shamim, Miss Sheema, Mrs. Rafat, Muhammad Saleem and Taj Marim, all employees of respondent No.2.
3. The case of applicants is that respondent No.2 by committing fraud had taken from them the amounts of Rs.50,000, 4,00,000 and 18,30,000 on different dates, on the pretext of investment in different businesses and also for having partnership in business with him.
4. The applicants had moved an application under section 265-K, Cr.P.C. before the trial Court, which was dismissed as per order dated 17-10-1991. Learned trial Judge, while dismissing said application, simply stated that, in her view, it was necessary first to record the statement of the complainant.
5. It is contended on behalf of applicants that learned Assistant Sessions Judge, Karachi. South, did not appreciate the facts that before lodging said F.I.R. the respondent No.2 had filed the Suit No.80/89 against applicants 1 and 2 for dissolution of partnership and accounts and this clearly indicated that the case was of civil nature and criminal proceedings were instituted to pressurise the applicants to forego their claim against him. Learned counsel also argued that inspite of the fact that no case was made out against applicants, yet, learned Assistant Sessions Judge, declined to acquit them nor assigned any valid reason in support of order, dated 17-11-1991.
6. From diary of this case, it appears that on 18-9-1990 charge was framed against applicants. Thereafter, 15 times the case was adjourned for different dates and for all these adjournments the prosecution was responsible. The case diary also showed that P.Ws. were not turning up. During this period a single witness was examined. Learned counsel for applicants referred to the order, dated 2-2-1989, passed by the then learned Sessions Judge, Karachi, South, whereby bail was granted to applicants on the ground, amongst others, that the then District Public Prosecutor, while conceding the grant of bail had submitted that all eye-witnesses of the incident in their respective statements under section 161, Cr.P.C., had not supported the prosecution. Mr. Shaikh Azizur Rehman learned counsel for the State reiterated the same facts, which were given by the then learned District Public Prosecutor to learned Sessions Judge, Karachi, South. He also frankly conceded that dispute is purely of civil nature for which respondent No.2 has already filed a suit for dissolution of partnership, declaration, injunction, and accounts before this Court. He has no objection if the proceedings are quashed. Ex facie, it appears that proceedings initiated by the respondent No.2 were not bona fide.
7. Accordingly, the aforesaid order dated 17-10-1991 is set aside and the I8 proceedings of the case in question are quashed.
8. N.H.Q./M-1896/K ????????????????????????????????????????????????????????????????????????????? Proceedings quashed.