Agha GHAZANFAR ALI vs SHAUKAT ALI and another
This matter concerns a petition for leave to appeal against a High Court judgment that refused to quash criminal proceedings initiated against the petitioner for alleged cheating and breach of trust. The petitioner, having received a substantial portion of the sale price for a house, failed to complete the sale or return the funds, leading the respondent to file a criminal complaint under the Pakistan Penal Code. The petitioner sought acquittal under the Code of Criminal Procedure, arguing a lack of mens rea, but the trial court and High Court declined to intervene. The core legal question was whether the High Court should exercise its inherent powers to quash criminal proceedings when the underlying dispute involves a contract and questions of intent. The Supreme Court held that the determination of mens rea and the commission of the offence of cheating are matters to be decided by the trial court upon the evaluation of evidence. Consequently, the Court refused leave to appeal, affirming that the criminal proceedings must be allowed to take their course.
- Whether the High Court should exercise its inherent powers to quash criminal proceedings when the dispute is essentially of a civil nature?
- Is the determination of mens rea in a cheating case a matter to be decided by the trial court after evidence, rather than at the stage of acquittal?
- Can criminal proceedings be quashed under Section 561-A of the Code of Criminal Procedure 1898 when there is a factual dispute regarding the performance of a contract?
- Section 406, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 249-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
' SAJJAD ALI SHAH, C.J.---The petitioner before us is the owner of the house in dispute, in respect of which agreement was executed for its sale for 30 lacks; from which 25 lacks were received by the petitioner and 5 laces were to be paid at the time of registration of sale-deed and handing over of possession, respondent No,1, Shaukat Ali, feeling aggrieved that the last part of the agreement was not performed by the petitioner, filed a criminal case before the learned Magistrate, 1st Class, Islamabad, under section 406/420, P.P.C.; in which the petitioner filed an application under section 249-A, Cr.P.C. For his acquittal on the ground that there was no probability of his being convicted.
This application was dismissed by the trial Court and the petitioner moved the High Court under section 561-A, Cr.P.C. For abashment of the proceedings .Before the trial Court, which is dismissed vide judgment dated 10-10-1994 and against which leave is being sought to file an appeal.
2. It is submitted that the petitioner was ready to perform the last part of the agreement and was waiting for respondent No,1 to turn up for payment of last installment of Rs,5,00,000 (Rupees five lacs) and registration of sale-deed, but he failed to come. It is further stated that the petitioner had no intention of committing cheating as he was always willing and ready to return the amount after adjudication in that respect from the Court. On query from the Court as to under what provision of law he had detained the amount and what steps were taken by him to obtain decision from the Court in that regard, learned counsel for the petitioner was unable to give any satisfactory reply and stated that the petitioner did not take any steps to go to the Court, but respondent No,1 filed the criminal case against him and also a civil suit for specific performance of the contract, which are pending. It is contended by the learned counsel that the petitioner has not committed any act of cheating as he had no men's area to misappropriate the amount received from respondent No,1 and even now is prepared to return the money if so directed, by the Court.
3. The question whether the petitioner has men's area to misappropriate the amount or not and whether offence. Of cheating was committed or not is to be decided by the trial Court after evaluation of evidence brought before it. There is no dispute about the factual position in this case that after receiving Rs,25,00,000 (Rupees twenty-five lacs) by the petitioner, neither the sale was finalized and possession handed over nor the amount was returned, which was obtained in 1987.
We agree with the High Court that this is a case in which interference is not warranted so that law should take its own course. Leave is refused and in the result the petition is dismissed as being without merits.
Cited by 1 case
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