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Criminal Miscellaneous Application No. 706 of 1963, decided on 14th May 1964.

, S. 561‑Complaint under Ss. 408 & 420, Penal Code (XLV of 1860)‑No case made out against accused in F. I. R. or in challan or by evidence recorded by Magistrate‑Proceedings quashed.

Muhammad Abbas v. State P L D 1964 Lah. 7 and B. D. Cayford v. Masood Ahmad P L D 1964 Kar. 69 ref.

Ibrahim Abbasi for Applicant.

S. Moinullah for the State.

Date of hearing : 14th May‑1964.

This is an application under section 561‑A of the Code of Criminal Procedure praying that the proceedings against the applicant in Case No. 69/1963 State v. Salimuddin and others under section 408/420, P. P. C., now pending in the Court of Muhammad Yousaf Khan, A. C. M., Karachi, Court VII be quashed.

2. The brief facts giving rise to this matter are that on 20‑7‑1962 respondents Nos. 1 and 2 filed an F. I. R. with the Goli mar Police Station alleging that the two accused Salimuddin and Masood Ahmad to whom the respondents/plaintiffs had entrusted G. M. C. Truck No. KAP 6279 for sale had misappropriated the sale proceeds and had themselves gone underground. This report was investigated by S. I. Inayat Ali then S. H. O. Golimar Police Station who at the conclusion of his investigation submitted on 17‑12‑1962 a charge‑sheet in the Court of Mr. Muhammad Yousuf Khan A. C. M., Karachi against the two accused Salimuddin and Masood Ahmad in respect of offences under sections 408/420, P. P. C. In column 2 of this charge‑sheet which column is entitled‑

" names and addresses of accused persons not sent up for trial whether arrested or not arrested including absconders (show absconders in red ink),"

the name of the present applicant appears in red ink. Moreover, the said charge‑sheet contains the following allegation and prayer concerning the present applicant‑

" during the investigation it was revealed that the said truck was purchased by Fazlur Rahman who has taken away the same to Chittagong where he has sold to somebody else."

" It is, therefore, prayed that accused Fazlur Rahman should be proceeded with under sections 87/88 and 512, Cr. P. C. and the rest two accused mentioned in Column 4 be proceeded with for the offence committed by them as reliable evidence is available against these accused which is mentioned in Column 6.."

3. The learned A. C. M. issued warrants against the applicant who appeared in his Court on 10‑7‑1963 and was remanded by him to custody. However, the next day I1‑7‑1963 the applicant was released on bail by the Sessions Court, Karachi. The case then proceeded against the applicant and the two co‑accused Salimuddin and Masood Ahmed and two prosecution witnesses being the two plaintiffs/respondents Wajid Ali and Muhammad Yamin were examined as P. W. 1 and P. W. 2. As in their depositions they said nothing about the applicant the present application was filed in this Court on his behalf for quashing the proceedings against him.

4. I have heard Mr. M. Ibrahim Abbasi on behalf of the applicant and he has contended that the process issued against his client amounts to an abuse of the process of the Court particularly, in view of the fact that no case either under section 408 or under section 420, P. P. C. has been made out against his client in the F. I. R., or in the challan or in the evi dence so far recorded. He relies for his submissions on two cases reported in Muhammad Abbas v. State (P L D 1964 Lah. 7) and B. D. Cayford v. Masood Ahmad (P L D 1964 Kar. 69).

5. I have also heard Mr. Moinullah appearing on behalf of the A. A.‑G. who supports this criminal miscellaneous application and the arguments of the learned Advocate appearing on behalf of the applicant.

6. I have carefully perused the evidence of the two complainants/prosecution witnesses examined namely Wajid Ali and Muhammad Yamin. Their evidence is directed against the two accused Salimuddin and Masood Ahmad to whom they had entrusted their G M C Truck No. K A P 6279 for sale. In the evidence of P. W. 1 Wajid Ali it appears from his examination in chief that he came to know from the brother of this present applicant that this truck had been purchased by the applicant who had taken it away to Chittagong with himself. The brother of the applicant had shown a photostat copy of a receipt Exh. P. 4 to Wajid Ali P. W. 1 which was produced in Court by the said Wajid Ali. In the course of the arguments the learned Advocate appearing on behalf of the applicant has produced before me the original of this receipt. This receipt is on the printed cash memo of the Pakistan Auction Mart, Nazimabad, which, according to Wajid Ali, is the name of the firm under which Salimuddin and Masood Ahmad were trading. The receipt bears No. 1429 and date 21‑6‑1962. It shows that one 1954 Model G. M. C. Truck was sold to Fazlur Rahman of Shahmir Colony Dhampara Chittagong for the sum of Rs. 4,600. It is contended by the learned Advocate appearing on behalf of the applicant that inasmuch as this truck was ten years old and was in a dilapidated condition, the price of Rs. 4,600 was a reasonable price that was paid in good faith by his client without knowing anything further concerning the antecedents of this truck.

7. I am satisfied that no case has been made out either under section 408 or section 420, P. P. C. against the present applicant in respect of this truck and that he was a bona fide purchaser for value without‑any knowledge as to the antecedents of this truck or the part played in regard to it by the two co‑accused Salimuddin and Masood Ahmad. I, therefore, announced a short order in Court accepting this miscellaneous application and quashing the proceedings so far as the present applicant is concerned. This judgment contains the reasons for that short order.

S. Q. Application accepted.

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