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Criminal Miscellaneous Application No. 190 of 1,972, decided on 4th September 1972.

, S. 561-A Accused entering Into agreement with complainant to hand over possession of a completed house within 6 months of receipt of ith of total cost of building-Amount paid up but despite lapse of 10 months nothing done by accused towards completion of building-Contention that complainant having not selected plot as envisaged In agreement accused was not liable even civilly much less could he be charged for cheating-Held : Facts as asserted by prose cution-Disclose offence--Question whether selection of plot already made or not-Yet to be examined at trial after recording evidence ---Stage too premature to arrive at definite finding on point-Quash ment of criminal proceedings refused-Penal Code (XLV of 186(3),

, S. 561-A-Quash ment-Delay in criminal trial-Proceedings pending for 5 years ---Delay neither attributed to complainant nor to prosecution-Accused never making any request for expeditious trial-Trial not completed due to accused's involvement in a large number of civil cases-Held, no ground made out for quashment of proceedings,

Abul Khair for Applicant.

Manzoor Hussain for the State.

The applicant Jamil 2;ahid son of Muhammad Sharif has filed this application under section 561-A of the Criminal Procedure Code for quashing the proceedings initiated against him on the first information report dated the 23rd November 1964 lodged by one S. A. Tahir for S. Muhammad Athar, resident of Nazimabad, Karachi on the 23rd October 1964. It was alleged that the petitioner established a concern in the name of National Construction and Electrical Corporation at 159, Garden Market. Karachi where he is indulging m acts of fraud and cheating of innocent and needy persons who are in dire need of housing accommodation, one of the prey being the first informant himself. In this connection the details given were that the applicant undertook on behalf of the Corporation to construct a house on a plot measuring 200 square yards in Block A, North Nazimabad, Karachi within 6 months of the date of the agreement, for which the first informant paid sum of Rs. 4,250, being th of the total cost of Rs. 17,000. It was alleged that, although 10 months had passed, yet nothing had been done by the applicant towards this construction of the house and he was putting off the refund of payment when approached in that behalf. It was afterwards revealed that the applicant had no concern, at all, with any plot in Block A of Nazimabad, where he had undertaken to sell the house not only to the first informant, but to the other persons as well from whom also he had fraudulently obtained advances of money.

2. Mr. Abul Khair, the learned counsel for the applicant, vehemently contended that the learned trial Magistrate erred in taking cognizance of the case as the facts, at best, involve a civil liability between the parties, which had been wrongfully converted into criminal offence by the first informant and also by the police. He further contended that these proceedings had been pending for over 5 years and, as such, there has been a clear abuse of the process of law and on that ground alone this Court may exercise its inherent power to grant redress to the petitioner by quashing the proceedings.

3. In support of the first contention, the learned counsel referred to the agreement executed between the parties on the 23rd November 1964. The relevant paragraphs thereof may be reproduced in extenso :

( 1) That the Party of the First Part is a Construction and Finance Corporation who would provide a built-up house on a plot measuring 200 square yards (facing West, on 50' road) in Block "A", North Nazimabad, Karachi (as selected by the Party of the Second Party) for the Party of the Second Part. The construction: complete in all respect, will be undertaken by the Party of the First Part on their own cost and expense.

(2) That the total value of the built-up house at the above mentioned plot is hereby discussed, decided and accepted by both the said parties to be Rs. 17,000 (Seventeen thousand only), including cost of lard, complete construction, sanitation, com plete wooden work, necessary electrification and colour wash.

(3) That the construction over We said plot will be R C. C. PILLAR" construction (single storied' thereupon would com prise as under or according to the plan.

(4) That the Party of the First Part hereby undertakes to hand over the built-up house (complete in all respect) within the period of six months from the date of the initial payment (i.e. of the total value), if any delay or failure caused, the Party of the First Part will be liable to pay the standard rent (i.e. Rs. 200.00) per month as penalty for that period to the Party of the Second Party."

4. The learned counsel for the applicant contended that the first informant lead not even made the selection of the plot over which the applicant was to construct the house for him, and therefore, even the civil liability could not be attributed to the applicant, not to speak of his being liable for the criminal offence for which he is facing the trial.

5. The arguments advanced by the learned counsel for the applicant, at the outset, are very attractive, but on scrutiny of the facts alleged against the applicant, I am afraid a clear cut finding to that effect cannot be given, as the present stage of the case. The bare reading of the first paragraph of the agreement would show that the applicant, on behalf of the Corporation, had undertake to provide a built-up house on a plot measuring 200 square yards (facing West on, 50 feet road) in Block A North Nazimabad, Karachi. The words appearing in brackets thereafter "i.e. as selected by the party of the second part" would clearly mean that the selection had already been made, and not that the selection had to be made afterwards. However, this aspect of the case has yet to be examined, at the trial, after evidence of the parties is recorded and this is too immature stage to reach at any definite conclusion in this regard. If the facts asserted in the First Information Report, as well as the police papers and the challan thereof, are found to be correct, the involvement of the applicant in regard to the offence is surely indicated, and the learned Magistrate cannot be condemned for taking cognizance of the case.

6. The learned counsel for the applicant next urged that the first informant was only interested in the refund of money, and not the constructed house, as would be clear from the notice sent by Mr. S. N. Rizvi, advocate on his behalf on the 22nd April 1965. The certified copy of this notice produced in Court shows that the first informant had reflected genuine apprehension, after the expiry of 5 months, as to how the applicant could abide by the contract of handing over a constructed house to him in terms of the agreement. In this connection this is what was stated in the notice. "That uptil now you have neither managed to get the plot of land nor you have got the maps approved by the relevant authorities and every time on enquiry by my aforesaid client you put off the matter for some other day either on one pretext or the other".

7. This apprehension in the mind of the first informant 5 months after the execution of the agreement, under which only one month was left for him to obtain a duly constructed house from the applicant, can safely be considered as legitimate, if his complaint be true.

8. As to the plea of delay in the trial of the case, it ma be said that it has not even been asserted that the first-informant or the prosecution is responsible for it. The applicant is alleged to have fraudulently recovered sums of money from several need persons for houses, and looking to the large number of case pending disposal in the civil Courts, it is not surprising that the trial of the case has not yet completed. If the object of the applicant was the expeditious trial, he should have, at least, made a request in this behalf in writing. Nothing has been shown in this regard.

9. For these reasons, I find no cogent ground for interference with the normal course of trial of the case in respect o L the criminal charges.

19. The Crl. Misc. application is, therefore, dismissed.

Application dismissed.

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