2008 Y L R 2695

[Lahore]

Before Kazim Ali Malik, J

ZAHID JAMEEL---Petitioner

Versus

S.H.O. and 2 others---Respondents

Writ Petition No.7635 of 2008, heard on 31st July, 2008.

(a) Penal Code (XLV of 1860)---

----S.405---`Criminal breach of trust'---Meaning, import, concept and legal test

elucidated.

(b) Penal Code (XLV of 1860)---

----S.406---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan

(1973), Art.199---Constitutional petition---Quashing of F.I.R. Complainant had sold
furnace oil to the accused and then facilitated its consumption by providing manual
labour to him---No relationship of trustee and beneficiary existed between the seller
(complainant) and buyer (accused)-Admittedly there was no express or implied contract
between the complainant and the accused with regard to any specific purpose of the
furnace oil so sold---Complainant had not restrained the accused from using the furnace
oil in his factory till payment of its price---Complainant thus was estopped to allege that
the accused had misappropriated the sold furnace oil---Offence of criminal breach of trust
was not made out against the accused---If the allegation set up in the F.I.R., divorcing
vague and general allegation of threats, were believed in toto even then it appeared to be
a pure civil dispute between the seller and purchaser touching sale price of furnace oil
allegedly due to the former from the latter---Police Station was not the competent forum
for determination of such like disputes---If it was admitted that the accused did not pay
the price of furnace oil purchased by him on credit, even then no offence against him was
made out---Only course open for the complainant was to file a money suit against the
accused before the Civil Court---Alarming tendency had been noticed in the recent past
to secure speedy result of bona fide civil dispute exclusively triable by the Civil Court by
having recourse to criminal law---Such tendency must be curbed with iron hands,
otherwise the police would assume the role of civil Court for unholy considerations---
High Court was normally reluctant to quash F.I.Rs. under constitutional jurisdiction, but
the police could not be and should not be allowed to assume the role of Civil Court---
Instead of filing a suit for recovery of disputed amount against the accused, complainant
had approached the police for the needful---Case diaries would show that the Incharge
Investigation had directed the Investigating Officer to undertake an exercise of rendition
of accounts between the parties---How could High Court allow the police to take
cognizance of money dispute requiring rendition of accounts---Since the police did not
remain within its allotted sphere, the case was fit for exercise of constitutional
jurisdiction and inherent powers---F.I.R. was quashed in circumstances and constitutional
petition was allowed accordingly.

Sadiq v. Muhammad Ashiq 2006 SCMR 276 ref.

(c) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Scope---Quashing of F.I.R.---High Court is

normally reluctant to quash F.I.Rs. under constitutional jurisdiction, but the police cannot
be and should not be allowed to assume the role of Civil Court and where it does not
remain within its allotted sphere constitutional jurisdiction can be exercised to quash the
same.

Ch. Abdul Quddoos Kamboh for Petitioner.

Rai Tariq Saleem, A.A.-G. for the State.

Mushtaq Ahmad .Qureshi for the Complainant/Respondent.

Muhammad Shahbaz, S.-I.

Date of hearing: 31st July, 2008.

JUDGMENT

KAZIM ALI MALIK, J.--Tanveer Ahmad, respondent/complainant, got registered a case

F.I.R. No.620 of 2008, dated 29-5-2008 under section 406, P.P.C. at Police Station,
Baghbanpura, Lahore with an allegation that Zahid Jameel, a factory owner, purchased
furnace oil worth Rs.2,25,000 on credit with an undertaking that he would pay its price
within a few days; that Zahid Jameel, accused, failed to honour his commitment; that the
complainant had been making repeated requests for payment of the outstanding amount
spreading over a period of one year, but with no positive response and that the accused
finally refused to pay the amount due from him while extending threats.

2. Asghar Ali, Sub-Inspector, Police Station, Baghbanpura drew up the F.I.R. to the above
effect on the statement of Tanveer Ahmad, complainant, with an observation that an
offence under section 406, P.P.C. was made out against Zahid Jameel, accused. The
investigation of the case was made over to Irfan Ali, Sub-Inspector, of the same Police
Station, who conducted investigation and concluded that Zahid Jameel committed an
offence under section 406, P.P.C.

3. Apprehending his arrest Zahid Jameel, accused made an application for anticipatory
bail before the learned Court of Session on 5-6-2008. He was allowed interim pre-arrest
bail. Before final disposal of his bail application, Zahid Jameel accused, filed instant
constitutional petition before this Court with the prayer for quashing the F.I.R. in question
on the only ground that the complainant laid a pure civil dispute before the police.

4. I have heard the learned counsel for parties and have gone through the record minutely.
The respondent/ complainant approached the local police with the complaint that Zahid
Jameel, accused, committed criminal breach of trust. The above named police officials
also formed an opinion that the accused was guilty of the offence of criminal breach of
trust punishable under section 406, P.P.C. Before adverting to the counter-claims of both
the sides, I find it advantageous to reproduce below section 405, P.P.C. which defines
criminal breach of trust:--

405. Criminal Breach of Trust, whoever, being in any manner entrusted with property or
with any dominion over property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses or disposes of that property, in violation of any direction
of law prescribing the mode in which such trust is be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of trust or wilfully suffer
any other person so to do, commits "criminal breach of trust".

5. A bare perusal of the above said provisions of law would show that one of the major
ingredients of the offence of criminal breach of trust is that the accused must have been
entrusted with property. The word `entrustment' used in section 405 connotes that the
accused holds property in question in. a fiduciary capacity. Expression entrust' in this
section is used in its legal meaning and not in its Dictionary meaning or popular sense.
The accused person is entrusted with property in legal sense and he receives it from
another otherwise than for himself. Penal provision touching the question of criminal
breach of trust would only apply when the owner of the property makes it over to another
person to be retained by him until a certain contingency arises or to be disposed of by
him on happening of certain event or to dispose of it in the light of certain terms and
conditions of the trust. In the case of entrustment the person who transfers possession of
the property to the second party still remains legal owner of the property and the person
in whose favour the possession is transferred has only custody of the property to be kept
temporarily or for its disposal by him for the benefit of first party according to agreed
terms and conditions. The word `trust' is a comprehensive impression which has been
used to cover the relationship of bailor and bailee; master and servant; pledgor and
pledgee, guardian and ward and other such-like relations, which postulates existence of
fiduciary relations between the first party (complainant) and the second party (accused).
With no stretch of imagination the relations between a shop-keeper and customer; vendor
and vendee; seller and purchaser come within the ambit of criminal breach of trust as
defined in section 405 and punishable under section 406 ibid.

6. The allegation set up in the F.I.R. does not qualify the above said legal test. In the case
in hand, the respondent/ complainant allegedly sold furnace oil to the petitioner/accused
on credit. The complainant, himself, stated in the F.I.R. that the accused used the
purchased furnace oil in his factory with the assistance of complainant's employees. In
other words the complainant sold furnace oil to the accused and then facilitated its
consumption by providing manual labour. There was no relationship of trustee and
beneficiary between the seller (complainant) and buyer (accused). Admittedly, there was
no express or implied contract between the complainant and the accused with regard to
any specific purpose of the sold furnace oil. The complainant had not restrained the
accused from using the furnace oil in his factory till payment of its price. Hence the
complainant is estopped to allege that the accused misappropriated' sold furnace oil. At
the cost of repetition I must say that the accused purchased furnace oil from the
complainant to use it in his factory. There was no other specified purpose of purchasing
the furnace oil. I have already observed that the complainant himself provided manual
labour to the accused for consuming/using the furnace oil in question.

7. Keeping in view the admitted state of record and the law governing the subject. I feel
no difficulty in concluding that the offence of criminal breach of trust is not made out
against the accused. If the allegation set up in the F.I.R. divorcing vague and general
allegation of threats, is believed in toto even then it appears to be a pure civil dispute
between the seller and purchaser touching sale price of furnace oil allegedly due to the
former from the latter. Here, I must say that police station is not the competent forum for
determination of such-like disputes.

8. For the sake of arguments if it is admitted that the accused did not pay the price of
furnace oil, which he purchased on credit, even then, no offence is made out. The only
course open for the complainant is to file a money suit against the accused before the
civil Court. Here I may add that in the recent past, I have noticed alarming tendency to
secure speedy result of bona fide civil dispute exclusively triable by the civil Court by
having recourse to criminal law. This tendency must be curbed with iron hands otherwise
the police will assume the role of civil Court for unholy considerations.

9. The learned counsel for respondent/complainant attempted to argue that the accused
extended life threats to the complainant when he approached him for the recovery of sale
price of furnace oil, therefore, he was liable to face trial under section 506, P.P.C. The
contention is misconceived. The F.I.R. does not tell as to when, where and in presence of
whom, the accused extended threats to the complainant. It. was a vague self-assertion of
the complainant, which must be ignored, particularly when the main controversy does not
attract any penal provision of law.

10. The learned counsel for complainant placed reliance on the case law laid down in
Sadiq v. Muhammad Ashiq 2006 SCMR 276 and argued that determination of guilt or
innocence of the accused should be left to the judgment of trial Court and that any order
by this Court in exercise of constitutional jurisdiction will hamper the investigation,
which comes within the exclusive domain of the police. I have minutely gone through the
precedent case and would say with extreme respect at my command for the observations
made- by the apex, Court that the case in hand is entirely distinguishable. The only
allegation against the petitioner herein/accused was that he purchased furnace oil on
credit for his factory from the complainant and then failed to pay its price on due date.
The dispute between the seller and purchaser falls within the exclusive domain of civil
Court. It is true that the High Court is normally reluctant to quash F.I.Rs. under
constitutional jurisdiction, but the police cannot be and should not be allowed to assume
the role of civil Court. Instead of filing a suit for recovery of disputed amount against the
accused, the complainant approached the police for the needful. A perusal of the case
diaries would show that the incharge investigation directed the Investigating Officer to
undertake an exercise of rendition of accounts between the parties. How can this Court
allow the police to take cognizance of money dispute requiring rendition of accounts. In
the case in hand, the police did not remain within its allotted sphere. Therefore, it is a fit
case for exercise of constitutional jurisdiction and inherent powers.

13. (sic) For what has been stated above, I allow this constitutional petition and quash the
F.I.R.

14. Before parting with this judgment, I would say again that no offence is/was made out
against the accused. Asghar Ali and Farman Ali, Sub-Inspectors, took cognizance of a
pure civil dispute and thus encroached upon the powers of civil Court obviously for some
considerations extraneous to the record. This is a conduct rather misconduct, which
cannot be approved of. The above named police officers dragged the accused in frivolous
criminal litigation unnecessarily. I, therefore, impose compensatory cost of Rs.50,000
upon them in equal shares. The learned District and Sessions Judge, Lahore shall recover
the said amount by adopting all legal means including coercive measures, if required, and
on its realization shall pay to the accused against proper receipt within a period of two
months under intimation to Deputy Registrar (Judicial) of this Court.

15. A copy of this judgment may also be sent to the above named police officials through
the Inspector-General of Police, Punjab directing them to remain within their allotted
sphere in future.

N.H.Q./Z-24/L F.I.R. quashed.

2008 Y L R 2169

[Lahore]

Before Mian Saqib Nisar and Tassaduq Hussain Jilani, JJ

MUHAMMAD RIZWAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2245-B of 2004, decided on 31st May, 2004.

(a) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.406, 420, 471 & 109---Prevention of

Corruption Act (II of 1947), S.5(2)---Offences in Respect of Banks (Special Courts)
Ordinance (IX of 1984), S.5(6)---Bail, grant of---Jurisdiction of High Court--State
Counsel had argued that in view of provisions of S.5(6) of the Offences in Respect of
Banks (Special Courts) Ordinance, 1984, High Court had no jurisdiction to grant bail in
respect of the offences under said Ordinance---Validity---Only restriction placed by
subsection (6) of S.5 of Offences in Respect of Banks (Special Courts) Ordinance, 1984,
was that if the Court intended to do so; it must satisfy itself that there appeared
reasonable grounds to believe that accused was guilty of a Scheduled offence---
Jurisdiction of the High Court to grant bail to accused involved in cases under Offences
in Respect of Banks (Special Courts) Ordinance, 1984 was intact and Section 5(6) of said
Ordinance did not curtail the powers of the High Court to grant bail---Accused neither
was a public servant nor there was any allegation of preparing fictitious or forged
documents and using the same---Provisions of S.5(2) of Prevention of Corruption Act,
1947 and Ss. 468 & 471, P.P.C. could not be attracted---To make out a case under S.406,
P.P.C., according to the definition of "criminal breach of trust" contained in S.405, P.P.C.,
ingredients which must exist were that property should be entrusted in any manner to the
person; that he should have the domain over the property; that he dishonestly mis-
appropriated or converted that property to his own use; or that he dishonestly used or
dispossessed the property in violation of any direction of law---No reasonable grounds
existed to believe that accused had misappropriated or converted the property to his own
use---Accused had been proved to have no part in misappropriation of pledged stock and
they were innocent---Accused was admitted to bail, in circumstances.

Mst. Zeenat Ali v. The State 1985 P.Cr.L.J 2592; Muhammad Moosa v. The State 1986
PCr.LJ 578 and Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599 ref.

(b) Penal Code (XLV of 1860)---

----Ss. 406 & 405---Criminal breach of trust--- To make out a case under S.406, P.P.C.,
according to the definition of "criminal breach of trust" contained in S.405, P.P.C.,
'ingredients which must exist were that property should be entrusted in any manner to the
person; that he should have the domain over the property; that he dishonestly
misappropriated or converted that property to his own use; or that he 'dishonestly used or
dispossessed the property in violation of any direction of law.

Muhammad Ahsan Bhoon for Petitioner.

Muhammad Jehangir Wahla for the State.

ORDER

Muhammad Rizwan, petitioner, seeks bail after arrest in case F.I.R. No.8, dated 17-2-
2003 registered against him and others at Police Station FIA CBC-I, Lahore for offences
under sections 406, 420, 468, 471, 109, P.P.C. read with section 5(2) of Prevention of
Corruption Act, 1947, on the complaint lodged by Muhammad Munir, Manager, National
Bank of Pakistan, Jando Ke Goraya Branch, Daska, District Sialkot. The allegation
against the petitioner is that he was allowed seasonal cash finance of Rs.20,00,000 on 6-
1-1999 against the pledge of 1900 bags of rice; he got encashed an amount of
Rs.19,50,000 through different cheques till 25-11-1999. He allegedly misappropriated the
pledged stocks with connivance of Basharat Ahmad, ex-Manager of the aforesaid Branch
of the Bank; an amount of Rs.21,63,000 was payable, but he paid the amount of
Rs.9,75,000 and misappropriated Rs.13,20,000. He was arrested on 16-2-2003. The
petitioner filed a petition for his release on bail, which has been declined by the Special
Court (Offences in Banks), Lahore vide order, dated 26-3-2004, hence this petition.

2. Before us, learned counsel for the petitioner contends that there is neither any
entrustment to nor domain of the petitioner over the pledged rice. He has not dishonestly
misappropriated or converted to his own use the pledged rice, as such, provisions of
section 406, P.P.C. are not attracted; there is no allegation of preparing forged documents
or using the same therefore, sections 468/471, P.P.C. are also not applicable to the facts of
the case; section 5 (2) 'of the Prevention of Corruption Act, 1947 is made out against the
Bank Manager, namely Basharat Ahmad who has neither been arrested nor challaned in
the case. Further that the rice was pledged and lying in the Ittehad Rice Mills, Lorhki;
Godown-keeper of the Mills was in charge of the godown; the petitioner never lifted the
rice as is evident from the statements of Muhammad Boota son of Khushi Muhammad
and Jamshed Gill son of Ijaz Gill, respectively Chowkidar Ittehad Rice Mills and
Godown-Keeper, National Bank' Jandoke Branch; during inquiry, Basharat Ali, Ex-
Manager of the aforesaid Branch of the Bank, has admitted his liability and agreed to pay
the amount; the inquiry officer namely Muhammad Salim recorded a finding on 5-11-
2002 that in the misappropriation of rice the petitioner and Qudratullah accused had not
played any role and recommended the case to be registered against the ex-Manager of the
Branch of the Bank.
3. On the other hand, the learned counsel for the State has argued that in view of
provisions of section 5(6) of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 (Ordinance No.IX of 1984) this Court has no jurisdiction to grant bail in
respect of the offences under the Ordinance. Further contends that the petitioner pledged
the rice with the Bank, received an amount of Rs.2 million as loan, the loan amount was
not deposited and misappropriated the pledged rice with connivance of his real uncle
Qudrat Ullah and Basharat Butt, ex-Manager of the Bank. According to him, the
provisions of section 405, P.P.C. are attracted which are punishable under section 406,
P.P.C. and in this view of the matter, the petitioner is not entitled to bail.

4. Firstly, we would advert to the question of jurisdiction of this Court to grant bail to the
petitioner for the offence under the Offences in Respect of Banks (Special Courts)
Ordinance, 1984. To appreciate the question, reading of subsection (6) of section 5 of the
aforesaid Ordinance would be relevant, which is reproduced hereunder:--

"(6) An accused person shall not be released on bail by a Special Court, or by any other
Court, if there appear reasonable grounds for believing that he has been guilty of a
Scheduled Offence; nor shall an accused person be so released unless the prosecution has
been given notice to show-cause why he should not be so released."

5. The words 'any other Court' in the above provision of subsection (6) of section 5 of the
Ordinance include the High Court. Subsection (8) of section 5 of the Ordinance gives us
an indication that the powers to grant bail may be sought under the Cr.P.C. The only
restriction placed by subsection (6) is that if the Court intends to do so it must satisfy
itself that there appear reasonable grounds to believe that the accused is guilty of a
Scheduled Offence. In this view of the matte, we are constrained to hold that the
jurisdiction of the High Court to grant bail to the accused involved in cases under the
Offences in Respect of Banks (Special Courts) Ordinance, 1984 is in-tact. See cases
reported as Mst. Zeenat Ali v. The State (1985 PCr.LJ 2592 Lahore) and Muhammad
Moosa v. The State (1986 PCr.LJ. 578). In case reported as Allied Bank of Pakistan v.
Khalid Farooq (1991 SCMR 599), while interpreting the provisions of section 5 (6) of the
Ordinance ibid it was held jurisdiction to grant bail was not restricted with the Special
Court alone. In this view of the matter, we hold that section 5(6) of the Offences in
Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No.IX of 1984) does not
curtail the powers of the High Court to grant bail. The petitioner is neither a public
servant nor there is any allegation of preparing fictitious or forged documents and using
the same, therefore, provisions of section 5(2) of the Prevention of Corruption Act, 1947
and sections 468 and 471, P.P.C. may not be attracted. To make out a case under section
406, P.P.C., according to the definition of `criminal breach of trust' contained in section
405, P.P.C., following ingredients, must co-exist:--

(i) That the property should be entrusted in any manner to the person;

(ii) He should have the domain over the property;

(iii) He dishonestly misappropriates or converts that property to his own use; or

(iv) Dishonestly uses or dispossesses the property in violation of any direction of law.

6. The entrustment to the Manager of the rice and domain over it may be there. To see
whether there appear reasonable grounds for believing that the petitioner has
misappropriated or converted to his own use that property, to our view, this requirement
is lacking.

7. During the inquiry (No.11 of 2001), it was observed by Muhammad Salim Sadiq,
inquiry officer/Inspector, FIA/CBC-I, Lahore, that Muhammad Rizwan was liable to
repay the amount and from the circumstances of the case it has been proved that
Muhammad Rizwan and Qudratullah had no part in misappropriation of the pledged
stock and they were innocent; however, Basharat Butt was responsible for the same.
Therefore, he recommended that the case be registered against Basharat Butt, Ex-
Manager of the NBP Jandoke Goraya Branch. It has been conceded that so far said
Basharat Butt, ex-Manager, has not been arrested. Muhammad Boota son of Khushi
Muhammad employee of Ittehad Rice Mills, Lorhki where the pledged stock of rice of
the petitioner was lying, has stated that Muhammad Rizwan never lifted the stock.
Jamshed Gil, Godown-keeper, NBP, Jandoke goraya Branch also made similar statement
that the pledged stock was lifted by Qudratullah. Basharat Butt also appeared in the
inquiry and agreed for deduction of the outstanding amount payable by the petitioner
from his dues payable to him under the Golden Hands Shake Scheme. The agreement,
dated 12-2-2002 Annexure-B to this effect has also been executed by Basharat Ali in
favour of the petitioner. On the basis of above stated facts, the position which has
emerged on the record is that there may be entrustment and domain over the stock of rice
which was lying in Ittehad Rice Mills but the petitioner had not lifted the pledged
goods/rice from the godown of Ittehad Rice Mills when the keys of the same were with
Basharat Butt, ex-Manager of the Bank, and Muhammad Boota and Jamshed Gil have
also made him responsible. We, therefore, are inclined to grant bail to the petitioner.

Resultantly, the petitioner is admitted to bail subject to his furnishing bail bonds in the
sum of Rs.10 lac (one million) with two sureties, each in the like amount to the
satisfaction of the trial Court.

H.B.T./M-575/L Bail granted.

2008 Y L R 1081

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rana Zahid Mahmood, JJ

SHAHID HASSAN AWAN---Petitioner

Versus

THE STATE through Chairman National Accountability Bureau Islamabad and another---
Respondents

Writ Petition No. 11422 of 2007, decided on 21st February, 2008.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) (iii), (iv), (ix), (x), (xii), 9(b) & 10(a)---Constitution of Pakistan (1973), Art.
199---Constitutional petition-"Bail, refusal of---Cheating or criminal breach of trust---
Determination---Stock broker---Contention of accused was that he was a stock broker and
prosecution had simultaneously made allegation of cheating and criminal breach of trust
while both offences were self-destructive and could not co-exist---Validity---Accused was
named in the reference specifically for committing offence falling within the ambit of
S.10(a) read with S.9(a) (iii), (iv), (ix), (x) ,and (xii) of National Accountability
Ordinance, 1999 and the Schedule thereto and very huge amount of Rs.1294 million was
involved in the reference---Accused could better explain his position of stock broker as it
was only the Trial Court who could dilate upon the position of stock broker after due
trial---High .Court declined to exercise constitutional jurisdiction to express any opinion
on the authority of stock broker and its scope---All contentions of accused would be
better appreciated after due trial by Trial Court---High Court also declined to express any
opinion on the wires of reference because trial had commenced, lest it should prejudice
the case of either of the parties---Bail was refused in circumstances.

Emperor v. John Mclver AIR 1936 Mad. 353 ref.

Ali Sibtain Fazli for Petitioner.

Qazi Misbahul Hassan, Special Prosecutor, NAB.

ORDER

This is a writ petition filed by the petitioner who is facing trial in a reference in
Accountability Court No.III, Lahore, under section 10(a) read with section 9(a) clauses
(iii) (iv) (ix) (x) and (xii) of National Accountability Ordinance, 1999 and the schedule
thereto for the commission of offences of corruption and corrupt practices being the Chief
Executive of a. private limited company known as Bulls and Bears (Pvt.) Limited and the
allegation against. the petitioner and co-accused is that they conducted illegal banking by
inviting public at large to deposit money with them in the above-said company by falsely
promising huge profits and indulged in future trading of commodities, currencies and in
this manner misappropriated at amount of Rs.1294 million from general public and
obtained illegal pecuniary advantage.

2. Learned counsel for the petitioner has prayed for bail to the petitioner on the ground
that petitioner was a stock broker and under the law, was authorized to do the business;
whereas under the National Accountability Ordinance (hereinafter referred to as "NAO")
unauthorized and illegal banking is not an offence. Learned counsel submitted that the
National Accountability Bureau (hereinafter referred to as "NAB") first filed an interim
reference against the petitioner and his company/co-accused and then subsequently filed
a supplementary reference. He submitted with reference to the allegations made in
paras.4 and 5 of the interim reference that the company of the petitioner was conducting
banking business and submitted that it did not fall within the mischief of NAB. He also
submitted that the prosecution in para.16 of said reference has alleged that the petitioner
had involved himself in the commission of offence of cheating as defined in section 415,
P.P.C. and dishonestly induced members of public at large to deliver and deposit their
money with the petitioner's company whereas at the same time the allegation is that the
petitioner also committed criminal breach of trust with regard to the money entrusted to
them by the public at large. He therefore, submitted that offence of cheating and criminal
breach of trust are self-destructive and cannot co-exist and in this regard learned counsel
placed reliance .on Emperor v. John Mclver (AIR 1936 Mad. 353). The learned counsel
thus submitted that the charge framed against the petitioner also suffers from patent
illegality and submitted that petitioner is in jail for the last four years whereas the
conclusion of the, trial is not in sight in which only a few formal witnesses have been
recorded as yet and there' are over 900 prosecution witnesses in the calendar with
reference. Therefore, submitted that petitioner is rotting in jail unnecessarily while there
is no probability of the conviction of the petitioner, therefore, he is entitled to be released
on bail pending the trial.

3. Learned Special Prosecutor of NAB has vehemently opposed the contentions raised by
the learned counsel for the petitioner and has submitted that Rs.1294 million are involved
in the illegal transactions carried out by the petitioner and his company in connivance and
collaboration with co-accused and in this way they. not only cheated the public at .large
but also obtained illegal pecuniary gains to themselves. He submitted that even if it be
assumed for the sake of argument, though not conceded, that unauthorized and illegal
banking is not an offence in the. NAO Ordinance, 1999, he submitted that cheating and
misappropriation of the amounts of the public for illegal pecuniary gains is very much
available on record against the petitioner. Learned Special Prosecutor submitted that a
direction has already been given by this Court to the learned Accountability Court
No.III/trial Court that the trial should be completed within six months vide order, dated
18-9-2007, therefore, submitted that said period has not expired as yet and submitted that
the learned counsel for the petitioner and co-accused did not appear regularly before the
learned trial Court and in this way impede the course of smooth trial and submitted that
out 1210 P.Ws. the prosecution intends to produce 50 or 60 P.Ws. only. At present
statements of nine or ten P.Ws. have been recorded (examination-in-chief) while due to
non-appearance of the learned defence counsel before the learned trial Court, the cross-
examination on the statements of the said P.Ws. is in abeyance. He submitted that since
the conduct of the petitioner is contumacious who is not producing the learned defence
counsel before the trial Court, therefore, he is not entitled to be released on bail as he is
causing delay in the conclusion of the trial within the stipulated period as fixed by this
Court. He submitted that the petitioner and the co-accused have misappropriated very
huge amount of 1294 million, therefore, he is not entitled to bail.

4. We have heard the learned counsel for the petitioner and also the learned Special
Prosecutor representing NAB and have perused the record.

5. The petitioner is named in the reference specifically for committing of offence falling
within the ambit of section 10(a) read with section 9(a) clauses (iii) (iv) (ix) (x) and (xii)
of NAO Ordinance, 1999 and the schedule thereto. A very huge amount of Rs.1294
millions is involved in the reference against the petitioner. The petitioner can better
explain his position of stockbroker as it is only the trial Court who can dilate upon the
position of stockbroker after due trial and it is not appropriate for us to express any
opinion on the authority of the stockbroker and its scope. A direction had already been
issued by us for expeditious disposal of the trial within six months vide order, dated 18-9-
2007 passed in Writ Petition No.12380 of 2006. The said stipulated period has not
exhausted as yet. In any event, as we have noticed that the pace of the progress of the trial
is quite slow and the prosecution has alleged that despite the fact that examination-in-
chief of various P.Ws. have been recorded but the witnesses are not cross-examined by
the defence counsel representing the petitioner for one reason or the .other. It would be in
the interest of the petitioner to cooperate with the learned trial Court for expeditious
disposal of the trial. All the contentions raised by the learned counsel for the petitioner
would be better appreciated after due trial by the learned trial Court. We do not feel it
appropriate at this stage when the trial has commenced to express any opinion on the
vires of the reference lest it prejudices the case of either of the parties.

6. No ground for allowing this petition is made out in terms of bail to the petitioner. We
may also mention that the case-law supra referred by the learned counsel for the
petitioner cannot extend any benefit to the petitioner at this stage and would be a valid
consideration after due trial as the said principle was also held by the Honourable Madras
High Court in an appeal against conviction. This writ petition is without merits and is
dismissed.

M.H./S-217/L Petition dismissed.

2008 C L D 1291

[Karachi]

Before Ali Sain Dino Metlo and Dr. Rana Muhammad Shamim, JJ

NATIONAL ENVIRONMENTAL CONSULTING, (PVT.) LTD. through Authorized

Officer---Applicant

Versus

Mirza KAMRAN BAIG and 2 others---Respondents

Criminal Revision No.127 of 2005, decided on 11th August, 2008.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----Ss. 4 & 5---Banking Companies Ordinance (LVII of 1962), S.5(b)---Complaint,

dismissal of---Deposits of money in bank---Purpose---Deposits of money accepted by a
bank from members of public were for the purpose of bank's use in lending or investment
and not for the purpose of keeping them apart as trust money--Adjustment of money from
the account of petitioner against the credit card liability of the Chief Executive of its
associated company did not amount to criminal breach of trust---No exception could be
taken to the Order of the Trial Court dismissing the complaint.

S. Pakrashi and another v. Emperor AIR 1941 Cal. 713; Attorney-General of Canada and
another v. Attorney-General of the Province of Quebec and another AIR 1947 P.C. 44;
Gopesh Chandra Pal and another v. Nirmal Kumar Das Gupta AIR 1950 Calcutta 57 and
Santosh Kumar and another v. The King AIR 1952 Cal. 193 ref.

Muhammad Abdullah for Applicant.

Saalim Salam Ansari for Respondent No.1.

Jam Asif Mehmood for Respondent No.2.

Rizwan Ahmed Siddiqui, D.A.-G. for Respondent No.3.

Date of hearing: 11th August, 2008.

JUDGMENT

ALI SAIN DINO METLO, J.----Two private limited companies, namely, National
Management Consultants (Pvt.) Ltd. and National Environmental Consulting (Pvt.)
Limited (the applicant), were maintaining their foreign currency accounts in ANZ
Grindlays Bank (now Standard Chartered Bank), I.I. Chandrigar Road, Karachi. Dr.
Junaid Ahmed was the Chief Executive of National Management Consultant (Pvt.) Ltd.
He was also one of the two directors of National Environmental Consulting (Pvt.) Ltd.
having '50% shares and power to operate its accounts singly.

2. On written application of Dr. Junaid Ahmed, in the capacity of Chief Executive of

National Management Consultants (Pvt.) Ltd., as well as of Syed Munawar Ali,
Accountant of the company, a Viza Credit Card, with credit limit of Rs.290,400, was
issued to him (Dr. Junaid Ahmed) by the Bank on 27-3-1997. The facility of finance was
regularly availed by him. However, in or about the year 2003 some differences arose
between him and the bank regarding repayment of the finance. Ultimately, on 26-2-2005,
the bank adjusted an amount of US Dollars 6361 from the account of the associated
company i.e. the applicant.

3. The applicant did not concede to the bank's lien (under section 171 of the Contract Act,
1872) on its money for adjusting debt of its associated company or its Chief Executive,
mainly on the ground that, in law, the two companies were two different legal entities. On
its protest, the amount was credited back to its account and the bank had to recover the
amount by filing suit in the Banking Court.

4. In addition, the applicant also filed a complaint in the Special Court (Offences in
Banks) Sindh at Karachi for punishing the Manager as well as the concerned Officer of
the Bank (respondents Nos. 1 and 2) for committing the offence of criminal breach of
trust. However, the Special Court, by its order, dated 7-10-2005, dismissed the complaint
by holding that the dispute was purely of civil nature and they had not committed any
offence. The applicant has challenged the order in the present revision.

5. The basic question involved in the case is: whether money deposited with a bank is
trust money, which the bank must preserve as trustee and not use, or a debt which the
bank must pay as a debtor to the depositor? If it is a debt, there can be no question of
prosecution for and breach of trust.

6. The question came for consideration before a Division Bench of Calcutta High Court,
in the case of S. Pakrashi and another v. Emperor, reported in 1941 Calcutta 713. In the
opinion of their lordships, the liability of a banker in respect of a depositor's current
account was only to return to the depositor an equal sum of money and the money could
not be said to have been entrusted with the banker in the sense in which the word `entrust'
was used in sections 405 and 409, Penal Code.

7. Thereafter, the question came for consideration before the Privy Council, in the case of
Attorney-General of Canada and another v. Attorney-General of the Province of Quebec
and another, reported in AIR 1947 Privy Council 44. In the opinion of their lordships of
the Privy Council, the relationship of a banker and customer, who deposits money into
the bank, was the ordinary relationship of debtor and creditor. Their lordships held:--

'The obligation is matuum not commodatum. Once the deposit is made there remains
only a debt due from the banker to the customer."

8. The principle laid down in the above two cases was followed by SEN J. in the case of
Gopesh Chandra Pal and another v. Nirmal Kumar Das Gupta, reported in AIR 1950
Calcutta 57. The same learned Judge in another case re Santosh Kumar and another v.
The King reported in 1952 Calcutta 193, observed:--

'The relationship between a depositor and a bank is the simple relationship of a creditor
and a debtor. A depositor who deposits money in a bank in his current account is nothing
more than a creditor and it cannot be said that there has been any entrustment to the bank
for any particular purpose. The Bank is of course liable to refund the money to the
depositor when the depositor calls for it, but the money deposited belongs to the bank and
the bank is entitled to deal with it as it likes."

9. In Pakistan, banks are functioning under the Banking Companies Ordinance, 1962.
Under its section 5(b) banking is defined as:---

"'Banking' means the accepting, for the purpose of lending or investment, of deposits of
money from the public, repayable on demand or otherwise, and withdrawable by cheque,
draft order or otherwise."

10. The above definition makes it abundantly clear that deposits of money accepted by a
bank from members of public are for the purpose of bank's use in lending or investment
and not for the purpose of keeping them apart as trust money.

11. In presence of- the above clear statutory provision and the judicial opinion, it cannot
be said that adjustment of money from the account of the applicant against the credit card
liability of the Chief Executive of its associated company amounted to criminal breach of
trust. Thus, no exception can be taken to the order of the trial Court dismissing the
complaint. It was for these reasons, that the revision, being meritless, was dismissed by a
short order passed on 11-8-2008.

H.B.T./N-35/K Petition dismissed.

PLD 2007 Karachi 536

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZULFIQAR ALI SHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.193 of 2006, decided on 10th August, 2007.

Penal Code (XLV of 1860)---

----Ss. 409 & 477-A---Appreciation of evidence---Benefit of doubt---Charge against

accused being that of criminal breach of trust, prosecution must prove not only
entrustment of or dominion over property, but also that accused either, dishonestly
misappropriated, converted, used or disposed of that property himself or that he wilfully
helped some other person to do so---Prosecution must affirmatively prove those
ingredients of the offence unless the receipt of the money was admitted by accused and
he offered no satisfactory explanation of what he did with it---In the present case,
accused, in his statement recorded under S.342, Cr.P.C., had categorically denied the
receipt of amount in dispute---Prosecution had failed to prove the ingredients of offence
under provisions of S.409, P.P.C.---Accused had further been convicted for offence
punishable under S.477-A, P.P.C..---No evidence had been led by the prosecution to
prove that accused, with intent to defraud, had made or abetted the making of any false
entries in the books of accounts, except the statement of Handwriting Expert which had
simply shown that writing on some documents was similar to that of the accused---
Examination of said documents and specimen writing of the accused showed vast
difference between both the writings---Handwriting Expert was also not definite with the
disputed writing as he had opined that writings were similar but did not use the word
"same"---Prosecution, in circumstances had failed to prove the case against accused
beyond any reasonable doubt---Conviction and sentence awarded to accused under
impugned judgment were set aside giving him benefit of doubt---Accused was acquitted
and set at liberty.

Shakir Hussain v. The State PLD 1956 SC (Pak.) 417 and Kishin Singh v. Emperor AIR
1928 PC 254 ref.

Muhammad Ashraff Kazi for Appellant.

Ainuddin Khan, ADPGA for Respondent.

Date of hearing: 29th May, 2007.

JUDGMENT

RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment
dated 27-3-2006 passed by the learned Presiding Officer, Special Court (Offences in
Banks), Sindh at Karachi, by which the learned Judge convicted the appellant for offence
punishable under section 409, P.P.C., sentenced him to suffer R.I. for seven years and fine
of Rs.13.54 Million or in default thereof to suffer R.I. for twenty-one months. The
appellant was further convicted for offence punishable under section 477-A, P.P.C. and
sentenced to suffer R.I. for five years with benefit of section 382-B, Cr.P.C.

On 17-5-2001 the complainant Abdul Ghaffar Dal, Regional Controller (Audit) ABL,
Regional Office Hyderabad filed a written complaint before the Director F.I.A., C.B.C.
Karachi. The said complaint was incorporated in 154, Cr.P.C. Book on 18-5-2001, which
reads as under:--
"With reference to the above cited, subject this is to inform you that a fraud has been
committed in our ABL Ltd. Khipro Bus Stand Mirpurkhas Branch by the Senior Cashier
Mr. Zulfiqar Ali, who was posted there. The said staff who is the senior cashier while
posted in the Khipro Bus Stand Mirpurkhas Branch on 4-5-2001 released suspense
account cash in Transit voucher for Rs.900,000 which was to be deposited with Main
Branch of the bank Mr. Zulfiqar Ali the senior cashier did not deposit the said amount as
required by him. When incoming cashier took the charge and found the shortage, the
incoming cashier immediately brought the fact to the knowledge of the Management. The
management took the control of the situation and managed to recover the shortage
amount from the said Mr. "Zulfiqar' Ali during the period 7-5-2001 to 9-5-2001 in cash.
The said Zulfiqar Ali confirmed .before. the senior officials and admitted that he did
misappropriate the funds acid gave it to some person related to him, in furtherance to this
fraud, it has been detected that the said cashier without lawful authority debited and
withdrew a sum of Rs.4.8 Million from the Account No.01 of M/s. Shane Ali Cotton
Ginning and Pressing Factory Naoabad in the following manner on the following dates:

6-1-2001
Rs.0.650 Million

13-6-2001
Rs.1.500 Million

23-4-2001
Rs.2.650 Million

That this amount of Rs.5.800 Million was withdrawn by said Mr.Zulfiqar Ali Senior
Cashier on Draw (Dr.) cash vouchers by forging the signature of the party. It has further
been detected that a sum of Rs.1.000 Million was misappropriated by the said Zulfiqar on
16-2-2001 which is deposited by the party through a Pay Slip No.2565346 and this
amount of Rs.1 Million was not credited to the account of the party Messrs Shane Ali
Cotton and Ginning Factory Naoabad. Further revelations were made regarding another
misappropriation of Rs. 1.620 Minion from the account of M/s. K.K. Cotton Ginners
misappropriated a total sum of Rs.7.420 Million while working as senior cashier and is
thus guilty of fraud, forgery, cheating and criminal breach of trust.

You are, therefore, requested to please register an F.I.R. so culprit be punished according
to law."
The F.I.A. authorities after collecting the required documents, recording the statements of
the witnesses and arresting the appellant challaned him in the Court where he was tried
and convicted as mentioned above under the impugned judgment.

We have heard Advocate for the appellant, ADPGA and perused the record of this case
very carefully.

The learned Advocate for the appellant has stated that the prosecution was required to
prove the misappropriation of the amount, but they have failed to produce the required
oral and documentary evidence, as such, the prosecution has failed to prove the case
against the appellant.

Conversely, .the learned ADPGA has stated that the prosecution has led the required oral
and documentary evidence, which support the prosecution case, therefore, he has
supported the impugned judgment.

The case involves the offence of criminal breach of trust punishable under section 409,
P.P.C. A five members Bench of the Hon'ble Supreme Court of Pakistan in the case of
Shakir Hussain v. The State (PLD 1956 S.C. (Pak.) 417) examined the question as to how
the prosecution was required to prove such offence. The Hon'ble Supreme Court observed
that where the charge against an accused person is that of criminal breach of trust the
prosecution must prove not only entrustment of or dominion over property but also that
the accused either dishonestly misappropriated, converted, used or disposed of that
property himself' or that he wilfully offered some other person to do so. It was further
observed that the prosecution must affirmatively prove these ingredients of the offence
unless the receipt of the money is admitted and the accused offers no satisfactory
explanation of what he did with it.

In the above authority two situations were visualized. (1) In a situation where the accused
admits the receipt of the amount then burden shifts upon him to prove as to what he did
with the amount and (2) in absence of such admission the prosecution must prove the
above ingredients with positive evidence. In the present case while going through the
evidence we found that the appellant in his statement recorded under section 342, Cr.P.C.
categorically denied the receipt of amount, therefore, the prosecution is required to prove
not only the entrustment of or dominion over the cash, but also that the appellant had
either dishonestly misappropriated, converted., used or disposed of the cash himself or
that he wilfully offered some other person to do so. Keeping in view the above position of
law and burden of proof, we have examined the evidence of the prosecution.

In this case, the prosecution alleged four transactions, the charge also spelt into the said
four transactions. The first charge in respect of misappropriation of the amount of
Rs.900,000, is as under:--

"That in the year 2001 you accused Zulfiqar Ali son of Qaimuddin while posted as Senior
Cashier, Allied Bank of Pakistan Ltd., (ABL) Khipro Bus Stand, Mirpurkhas Branch, in
complicity with deceased accused M. Arif Ali Khan, the then Manager of the Branch to
defraud ABL, in pursuance thereof, you accused Zulfiqar Ali on 4-5-2001 knowingly,
fraudulently and dishonestly prepared a forged Credit Voucher of Suspense Account
dated 4-5-2001 for Rs.9,00,000 (Rupees Nine Hundred Thousand Only) for depositing in
ABL Main Branch, Mirpurkhas but did not deposit the same in the Main Branch and thus
misappropriated Rs.9,00,000."

In order to prove the charge the prosecution relied upon the evidence of only one witness
viz. P.W.6 Qamar Abbas, Accountant ABL, Khipro Bus Stand Branch, Mirpurkhas. His
evidence reveals that on 4-5-2001 the appellant received a cash of Rs.900,000 from
suspense account to be deposited in the Main, Branch of Mirpurkhas through Exh.S/C-5.
He further deposed that on the next date, on his enquiry from Manager ABL M.A. Jinnah
Road Mirpurkhas, he came to know that the said amount was not deposited with the said
branch. He also deposed that on their enquiry, the appellant admitted the non-deposit of
Rs.900,000 with the said branch and then he deposited the said amount through three
vouchers in the Bank, on their pressure. He further deposed that at the back of Exh. 5/C-5
the signature of the appellant was appearing. The appellant challenged the signature on
Exh.S/C-5 by taking the plea that he was in custody and wider coercion his signature was
obtained. As regards the deposit of amount through three vouchers, the witness himself
admitted that it was deposited on their pressure, as such, the said deposit cannot be
termed as voluntary act of the appellant. Even we accept the statement of this witness,
that the appellant .received the amount of Rs.900,000 to be deposited in M.A. Jinnah
Road Mirpurkhas, but there is no evidence on record to show that the amount was not
deposited in the Bank, as the prosecution specifically alleged that the appellant
misappropriated the amount by not depositing the amount. The appellant has not admitted
the receipt of the amount, therefore, the prosecution was duty bound to prove
affirmatively through tangible evidence that the amount was not deposited in M.A. Jinnah
Road Mirpurkhas. The P.W.6 took the plea that on enquiry from the Manager ABL, M.A.
Jinnah Road Mirpurkhas, he carne to know that the amount was not deposited. The said
Manager was not examined in the Court, as such the said statement of the witness is
hearsay and inadmissible, therefore, it cannot be relied upon. In order to prove the non-
deposit of the amount in the bank, the prosecution could have easily proved such fact by
examining some officers from the said Bank or to produce the documents or books
.showing the transactions dated 4-5-2001 that the amount of Rs.900,000 was not
deposited. However, the prosecution has failed to produce such evidence, as such,
without such evidence it cannot be held positively that the appellant had misappropriated
the amount by not depositing the amount in M.A. Jinnah Road Mirpurkhas. As regards
the extra-judicial confession of the appellant, it is well-settled principle of law that it
should be corroborated on material particulars by other pieces of evidence. The
prosecution tried to prove it through receipts of deposits of Rs.900,000, but the witness
himself admitted that the amount was deposited under pressure. Thus, the extra-judicial
confession of the appellant without any corroborative piece of evidence-cannot 'be relied
upon.

Further the appellant took the plea of tampering with Exh.S/C-5 by alleging that his
signature on it was obtained under coercion. In order to ascertain whether or not Exh.
5/C-5 was ever tampered with? We have examined the said document acid found that on
its front the words on two lines arc under the stamp of the Bank, that means that first the
words on the said lines were written and then stamp was affixed. But the position is not
same in respect of third time as three words "through Zulfiqar Ali" were written up-to the
outer line of Bank's stamp though there was plenty of space in the said line and the last
word "Shar" could have been written in that space but the word "Shar" was written on
fourth line. This was manifestly done as the stamp was already fixed on the document,
therefore, the last word was shifted to fourth line instead of writing on the third line. This
clearly demonstrates that the words "through Zulfiqar Ali Shar" were written,
subsequently, after the Bank's stamp was put on the document. It is pointed out that there
was no need of written the words "through Zulfiqar Ali Shar" as it is repetition of the
words appearing in third line with change of name of officer as the third line reads
"Through officer and the (last .word illegible)" . Thus, the words "through Zulfiqar Ali
Shar" were written subsequently to involve the appellant by tampering with the
document. In such a situation the Exh.S/C-5 has become a doubtful document and the
plea of the appellant about its tampering gets support from the above position. Thus, the
prosecution has failed to prove the ingredients of the offence in respect of this charge.

As regards the second allegation, the trial Court framed the following charge:--

"Anal during 6-1-2001 to 23-4-2001 you accused Zulfiqar Ali in capacity of Senior
Cashier, Khipro Bus Stand, Mirpurkhas Branch, knowingly, fraudulently and dishonestly,
prepared three forged debit vouchers for Rs.0.650 Million dated 6-1-2001, Rs. 1.500
Million dated 13-2-2001 and Rs.2.650 Million dated 23-4-2001 after forging the
signature of Account holder Messrs Shane Ali Cotton Ginning Factory, Naoabad and on
the basis of aforesaid three debit vouchers fraudulently withdrew a total sum of Rs.4.800
Million and pocketed/misappropriated the amount and thus committed the offences of
criminal breach of trust, using forged documents as genuine and falsification of Bank's
Books of Accounts."

In order to prove the said charge, the prosecution again relied upon the evidence of a
single witness viz. P.W.5 Raj Kumar, who was maintaining the Account No.CFI, Khipro
Bus .Stand Branch. After seeing three debit vouchers (Exhs.S/C-8/1 to 8/3) his evidence
reveals that he signatures on the back of the documents did not belong to him and that the
did not receive the said amount. The allegation in the charge is that the appellant had
withdrawn the amount of Rs.4.800 Million through three above mentioned vouchers from
the Account No. CFI. The evidence of Raj Kumar simply shows that lie had not received
the amount. If the amount had been withdrawn from the account of the P.W.5 then such
entries must be available in the Books of Accounts, therefore, the prosecution was
required to produce the statement of account of the Account No. CFI or produced any
oral evidence by examining some bank officials to prove that the amount was withdrawn
from the Account No. CFI. No such evidence has been produced to prove the withdrawal
of the amount from the account, as such, without such evidence the prosecution has railed
to establish the important ingredients of the offence. Thus, the prosecution has failed to
prove the charge.

The third allegation is mentioned in the charge, which reads as under:--

"And on 16-2-2001 you accused Zulfiqar Ali in capacity of Senior Cashier, received a
sum of Rs. 10, 00,000 (Rupees Ten Lacs) from Account holder Shane Ali Cotton Ginning
Factory, Naoabad, under Pay-in-Slip No.2565340 dated 16-2-2001 under your signature
and rubber stamp of the Bank in token of having received the amount, but did not credit
the same amount in the account of Messrs Shane Ali Cotton Ginning Factory and thereby
committed the offence of criminal breach of trust."

In order to prove the charge, the prosecution relied upon the evidence of P.W.5 Raj
Kumar, P.W.3 Imdad Ali Memon, OG-III, P.W.7 Zulfiquar Ali Manager, P.W.8 Rafiq
Ahmed Assistant, ABL, M.A. Jinnah Road Mirpurkhas. The evidence of Raj Kumar
reveals that he received Advice Slip from ABL Tando Adam of Rs.19,00,000 on 16-2-
2001 which he deposited in his account under deposit slip. He produced the said deposit
slip as Exh. 9/A. A perusal of deposit slip reveals that the amount of Rs.10,00,000 is
mentioned in it, but the column of "particulars" is blank, it does not show whether the
said amount was deposited in cash or through advice slip. Be that as it, the evidence of
above-mentioned bank officials of ABL, MA. Jinnah Road Mirpurkhas reveals that on
16-2-2001 the appellant brought cash of Rs.23,00,000 and Inter Bank Credit Advice
(IBCA) of Rs.10,00,000 issued by Tando Adam Branch to M.A. Jimiah Road Mirpurkhas
.dated 16-2-2001. The appellant deposited the cash and the said IBCA and the Bank
issued another Inter Back Credit Advice (IBCA) for sum of Rs.33,00,000 from M.A.
Jinnah Road Mirpurkhas to Khipro Bus Stand Branch Mirpurkhas. The IBCA was handed
over to the appellant.

Apparently, the prosecution has proved first ingredient of the offence of entrustment of
IBCA of Rs.33,00,000, but there is no evidence to show that the said IBCA was not
received by Khipro Bus Stand Branch, Mirpurkhas or it was not deposited with the said
branch. To prove the said facts, the prosecution was required to examine an officer from
Khipro Bus Stand Branch, Mirpurkhas to prove non-receipt of IBCA of Rs.33,00,000
issued by M.A. Jinnah Road Branch, Mirpurkhas to Khipro Bus Stand Branch,
Mirpurkhas or some documents or Books of Accounts to show the transactions on the
said dated or subsequent dates to show the non-deposit of IBCA of Rs.33,00,000.

After issuance of IBCA of Rs.33,00,000 which included IBCA of Rs.10,00,000 of Tando

Adam Branch to M.A. Jinnah Road Branch Mirpurkhas only books adjustments would
have been made in the relevant books to carry out the amount. In the absence of such
evidence, it is observed that the prosecution has also failed to .prove the said ingredient
of the offence, hence the charge has not been proved.

As regards the fourth allegation, the charge is as under:--

"And on 8-3-2001 you accused Zulfiqar Ali in capacity of Senior Cashier further received
an amount of Rs.1.620 Million from Mr. Ashok Kumar holder of Account No. CD-02
through "relevant account and misappropriated the same."

In order to prove the charge, the prosecution again relied upon a solitary evidence of
P.W.10 Ashok Kumar. His evidence reveals that on 3-3-2001 he deposited cash of
Rs.16,20,000 under Deposit-Slip. The appellant after receipt of amount returned the
Deposit-Slip after putting the required Bank's stamp on it. His evidence further reveals
that after sometime he came to know that the appellant after receiving the amount 'did not
deposit the cash in the Bank and did not account for it in his account.

From the above evidence even we accept the statement of this witness that the appellant
had received the amount as a Cashier at the Counter of Bank, but the prosecution was
required to prove the misappropriation that it was not deposited in the account. The
P.W.10 simply stated that he came to know about non-deposit of amount after sometime.
He did not disclose the source of receipt of such information. It could have been verified
by obtaining statement of account, but there is no evidence that the P.W.10 came to know
such fact through statement of accounts or it was informed to him by any competent bank
official. Thus, the statement of the witness is hearsay evidence, which is inadmissible in
evidence. In order to prove the non-deposit of amount, the prosecution should have
produced the Statement of Account of Raj Kumar showing the non-deposit of the amount
in his account. The prosecution could have also examined any bank official of Khipro
Bus Stand Branch to prove such tact, but no evidence whatsoever was led by the
prosecution to prove such fact. Thus, the prosecution has also failed to prove the said
charge against the appellant.

After considering the material available on the record, we are of the considered view that
the prosecution has failed to prove the ingredients of the offence of provisions of section
409, P.P.C. The appellant has further been convicted for offence punishable under section
477-A, P.P.C. No evidence worth mentioning has been led by the prosecution to prove
that the appellant with intent to defraud, make or abet the making of any false entries in
the Books of Accounts except the statement of Handwriting Expert which simply shows
that the writing on some documents are similar to that of the appellant. We have
examined said documents viz. Exhs. 5/C-8/1 to 8/3 and the specimen writing of the
appellant; we found that there is vast difference between the both the writings. The
Handwriting Expert was also not definite with the disputed writing as he opined that
writings were similar. To a Court's query, the witnesses deposed asunder:--

"It is correct to suggest that I have matched the questioned documents with the specimen
signature and handwriting of the accused and gave my opinion as similar, but it cannot be
termed as same...."

The appellant has been acquitted in respect of offences falling under sections 408, 468
and 471, P.P.C. though charged as he has not been convicted for the said offences.
Reliance is placed on Kishin Singh v. Emperor AIR 1928 PC 254. Thus the prosecution
has also failed to prove the said charge.
In the light of what has been discussed above, the prosecution has failed to prove the case
against the appellant beyond any reasonable doubt, therefore, the appellant is entitled to
the benefit of doubt, which is accordingly given to him. Consequently, the conviction and
sentence awarded to the appellant under the impugned judgment are set aside. The
appellant is acquitted and set at liberty. He is in custody, he should be released forthwith,
if not required in any other custody case.

The appeal is allowed.

H.B.T./Z-12/K Appeal allowed.

2006 P Cr. L J 1900

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAUKAT ALI SAGAR----Appellant

Versus

STATION HOUSE OFFICER, POLICE STATION BATALA COLONY, FAISALABAD

and 5 others----Respondents

Writ Petition No.345 of 2006, heard on 27th January, 2006.

(a) Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 405, 406 & 506---Constitution of Pakistan
(1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Criminal breach of
trust---Offences not made out by facts alleged in F.I.R.---Complainant had given money
to accused/petitioner for purpose of doing business and giving profit to complainant
therefrom---On failure of accused to return money/profit to complainant, the latter lodged
F.I.R. against accused---Validity---Offence of criminal breach of trust defined under
S.405, P.P.C. punishable under S.406, P.P.C. was to be committed if property (money)
was given on trust and same property was not returned---If a person gave money to other
for purpose of investment in business and equivalent amount of money along with profit
was to be returned by the latter then such business transaction was not to attract
provisions of Ss.405 & 406 of P.P.C.---Such transaction was not of entrustment of
property but simply one of investment of property---No date, time or place of criminal
intimidation by accused was given in F.I.R.---No relevant details of criminal intimidation
were brought on record of investigation---No one could be prosecuted on the basis of
vague and unspecified allegations---Trial Court, in case of submission of challan, would
not be in a position to frame charge against accused--Complainant had tried to convert a
civil and business dispute into a criminal case in order to extract concessions in civil
matter---F.I.R. was quashed.

(b) Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.506---Constitution of Pakistan (1973),

Art.199---Constitutional petition---Quashing of F.I.R.---No date, time or place of criminal
intimidation by accused was given in F.I.R.---No relevant details of criminal intimidation
were brought on record of investigation---No one could be prosecuted on the basis of
vague and unspecified allegations---Trial Court, in case of submission of challan, would
not be in a position to frame charge against accused---F.I.R. was quashed.

Nadeem Shibli for Petitioner.

Syed Hasnain Kazmi, Asstt. A.-G. for Respondents Nos.1, 2, 4 and 5 with Muhammad
Rashid, Inspector, Legal, Faisalabad and Muhammad Khan, S.-I. with record.

Respondent No.6 in person.

Nemo for Respondent No.3.

Date of hearing: 27th January, 2006.

JUDGMENT

ASIF SAEED KHAN KHOSA, J.--- Through this petition the petitioner has sought
quashing of F.I.R. No.22 registered at Police Station Batala Colony, Faisalabad on 8-1-
2006 for offences under sections 406 and 506, P.P.C. in respect of an alleged criminal
breach of trust and criminal intimidation committed by the petitioner and his co-accused,
i.e. respondent No.6 herein.

2. I have heard the learned counsel for the parties and have gone through the record of
this case with their assistance and have straightaway found that the facts alleged in the
impugned F.I.R. do not constitute the offences invoked therein. According to the F.I.R.
some amount of money was given by the complainant to the petitioner for the purposes of
doing business therewith and for giving profit to the complainant therefrom. An offence
of criminal breach of trust defined by section 405, P.P.C. is constituted and the same is
punishable under section 406, P.P.C. if some property is given on trust and the same
property is to be returned. In the case in hand it was not the complainant's case that the
same currency notes which had been given by him to the petitioner were to be kept by the
petitioner by way of a trust and the same currency notes were to be returned to the
complainant. It is a settled proposition by now that if some money is given to somebody
for the purpose of investment in some business and an equivalent amount of money along
with profits over the same are to be returned to the person giving the money in the first
instance then such a business transaction does not attract the provisions of section 405,
P.P.C. read with section 406, P.P.C. because in such a case the same property is not to be
returned but what is to be returned is its equivalent property along with profits. In a case
of this nature the matter is not of entrustment of property but is simply one of investment
of property.

3. As regards the provisions of section 506, P.P.C. invoked in the impugned F.I.R. it has
been noticed by me that no date, time, or place of criminal intimidation by the petitioner
and his co-accused have been specified in the impugned F.I.R. It goes without saying that
no person can be prosecuted on the basis of vague and unspecific allegations. Even
during the investigation no relevant detail about the alleged criminal intimidation has
been brought on the record of investigation and, thus, in case of submission of a challan
in that regard the trial Court shall be in no position to frame a charge in that respect
against the petitioner and his co-accused.
4. A perusal of the impugned F.I.R. itself shows that there is an outstanding business
dispute between the parties which dispute has all the trappings of a civil dispute. It
appears that through lodging the impugned F.I.R. the complainant has tried to convert a
civil and business dispute into a criminal case so as to bring the weight of criminal law to
bear upon the petitioner and his co-accused in order to extract concessions in that civil
dispute. This exercise on the part of the complainant appears to be actuated by nothing
but malice which cannot be allowed by this Court to be perpetuated. This writ petition is,
therefore, allowed with no order as to costs and the impugned F.I.R. is hereby quashed.

S.M.B./S-29/L Petition allowed.

2006 P Cr. L J 263

[Lahore]

Before Sh. Hakim Ali, J

Messrs ADAM SUGAR MILLS LIMITED and 2 others----Petitioners

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and 8 others----Respondents

Writ Petitions Nos.1437, 3094, 3243 and Criminal Miscellaneous No.894/Q of 2005,
decided on 24th October, 2005.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Article 199 of the

Constitution relates to jurisdiction conferred by the Constitution upon High Court---All
other legislated or framed laws fall within the encompass of sub-constitutional legislation
and they cannot claim superiority over the constitutional powers and jurisdiction vested
under Art.199 of the Constitution upon High Court, as it has got vast powers and
jurisdiction to deal with all the situations which have been brought to its notice through
the institution or filing of the writ petition.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Powers and jurisdiction of High Court
cannot be restricted through any law which is not the part and parcel of the Constitution.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court---Quashing of

proceedings---High Court has inherent jurisdiction under S.561-A, Cr.P.C. in exceptional
cases even to quash the proceedings without awaiting the order of Trial Court passed
under S.249-A or 265-K, Cr.P.C.

Miraj Khan v. Gul Ahmad and others 2000 SCMR 122 ref.

(d) Penal Code (XLV of 1860)---

----S. 406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing

of F.I.R.---Breach of contract alleged by one party against the other party was the main
cause for registration of the -Complainant Trading Corporation was claiming the sugar
stock into its custody---Accused Mills in such a case would not be considered or held to
have been entrusted with custody of the sugar or to have committed any criminal breach
of trust---For the commission of offence under S.406, P.P.C. the entrustment, grant of
possession or dominion over the property was most essential and in absence of the same
the breach of trust could not follow---Plain reading of the F.I.R., thus, did not disclose the
commission of an offence under 5.406, P.P.C. by the accused Mills and registration of
case thereunder was illegal and unlawful, which could not be allowed to proceed as it
would be an abuse of the process of law---Even otherwise, the F.I.R. being the result of
the alleged breach of terms of the contract, the complainant Trading Corporation
appeared to settle the civil dispute through initiation of criminal proceedings, which
abuse could not be allowed to perpetuate---Impugned F.I.R. was quashed in
circumstances.
Central Board of Revenue and others v. Khan Muhammad PLD 1986 SC 192; Miraj
Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Pir Bakhsh v. The Chairman
Allotment Committee PLD 1987 SC 145; Abdul Waheed Qureshi v. Municipal
Committee, Lalamoosa and 3 others 2004 YLR 1206; Waheed Azmat Sheikh v. Chairman
Habib Bank Ltd. and 2 others 2002 CLC 929; Mst. Azra Israr v. Inspector-General of
Police, Punjab and others PLD 2003 Lah. 1; Ahmad Saeed v. The State 1996 SCMR 186;
M. Arshad v. The State PLD 2004 Lah. 70; Ghulam Qasim v. Nazir Ahmad and 3 others
1996 PCr.LJ 1187; Muneer Ahmad v. The State and 2 others 2004 YLR 2748; Haji
Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238;
Messrs Muhammad Siddique Muhammad Umar and another v. The Australasia Bank Ltd.
PLD 1966 SC 684 and Muhammad Yaqoob v. S.H.O. and others 1997 MLD 2097 ref.

(e) Penal Code (XLV of 1860)---

----S. 406---Punishment for 'criminal breach of trust---Entrustment, grant of possession or

dominion over the property is one of the most essential part of the offence.

(f) Criminal Procedure code (V of 1898)---

----S. 561-A---Inherent powers of High Court---Abuse of process of Court---Continuance

of criminal proceedings in which there is no expectancy or probability of even charge
succeeding, would be merely an abuse of process and nothing more.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition, institution of---Aggrieved party---Where a person

has got any interest, may it be the smallest one, in the performance of legal duty of a
person, functioning with affairs of Province or a Local Authority, he can file the petition.

Mian Abdul Ghaffar and Nadeem Iqbal Ch. for Petitioners.

Sardar Muhammad Hussain, Ahmad Mansoor Chishti for Respondent No.1.

Muhammad Akhtar Qureshi for Respondent No.7.

Shaheen Masood Rizvi, A.A.-G. and Jamshed Ali, S.H.O.

Date of hearing: 19th October, 2005.

JUDGMENT

SH. HAKIM ALI, J.--- Through this composite order, the fate of the following cases is to
be determined:

(i) Messrs Adam Sugar Mills v. Trading Corporation Writ Petition No.1437 of 2005; (ii)
Zia-ud-Din Ahmad, Manager T.C.P. v. D.P.O. and others Writ Petition No.3094 of 2005;
(iii) Zia-ud-Din Ahmad v. Magistrate 1st Class and others Writ Petition No.3243 of 2005
and (iv) Zia-ud-Din Ahmad v. Adam Sugar Mills and others Criminal Miscellaneous
No.894/Q of 2005.

2. The details of facts and order based on reasons is being passed in the instant Writ
Petition No.1437 of 2005.

3. The admitted facts between the parties on the basis of which the above mentioned
cases have been filed are that Messrs Adam Sugar Mills Limited, the writ petitioner had
entered into a contract with Trading Corporation of Pakistan Limited, respondent No.1,
for sale of 12000 M.T. sugar equal to 2,40,000 bags of 50 Kg. each. Both the parties are
accusing each other for the violation of terms of contract, therefore, the contract have
allegedly stood cancelled/not fulfilled. It has been admitted by the learned counsel,
appearing on behalf of both the parties that 85% amount was paid by the Trading
Corporation of Pakistan to Messrs Adam Sugar Mills Limited in furtherance of part
payment of the sale consideration. According to Messrs Adam Sugar Mills and others, the
writ petitioners, Trading Corporation of Pakistan-respondent No.1, had failed to pay 15%,
the remaining sale amount settled between the parties for the purchase of above
mentioned sugar. So 85% amount received was returned by the petitioner to the Trading
Corporation of Pakistan, respondent No.1 with notice of cancellation of the contract but
the amount was not accepted by the Trading Corporation of Pakistan. Explaining the case
of Trading Corporation of Pakistan, learned counsel appearing on its behalf states that in
fact, Messrs Adam Sugar Mills Limited had delivered the sold out sugar bags of 12000
M.T. equal to 2,40,000 bags of 50 Kg. each to Trading Corporation of Pakistan. For the
supervision and protection of which, respondents had appointed its "Muqaddam". These
bags of sugar were lying within the premises of Sugar Mills but the Management of
Sugar Mills served a notice under section. 80, C.P.C. upon the Government and
respondent No.1 and filed a suit for declaration and cancellation of documents of,
contract and grant of permanent injunction in the Honourable Sindh High Court at
Karachi, while respondent No.1 also filed afterward a suit for specific performance of
contract in the aforesaid Honourable Court. The suit filed by Messrs Adam Sugar Mills
Limited was withdrawn while the suit filed for specific performance of contract is
pending.

4. Considering the breach of contract having been committed by the petitioners, further
action was taken by the Trading Corporation, respondent No.1 and a letter addressed to
the S.H.O. Police Station, City Chishtian was transmitted by the General Manager of
Trading Corporation of Pakistan, for registration of a criminal case against the Chief
Executive and General Manager of Adam Sugar Mills. Upon this letter, dated 20-3-2005,
a formal F.I.R. No.126 of 2005 was registered under section 406 of the P.P.C. with Police
Station, City Chishtian on 28-3-2005. Registration of this criminal case aggravated the
situation as more cases came pouring in the Courts. A Writ Petition No.959 was filed by
Adam Sugar Mills Limited for issuance of a direction to the D.P.O. etc., not to harass the
petitioner illegally and refrain from causing interference into their affairs. That writ
petition was disposed of by this Court on 26-4-2005 with direction that the police was to
maintain and protect the property in dispute i.e., sugar bags which property is being
claimed by the Trading Corporation as in its ownership. It was noted in the order passed
in the aforesaid writ petition that as the matter was already sub judice before the
Honourable Sindh High Court at Karachi, therefore, the police was to take action in
accordance with law and the property in dispute (Sugar bags) were ordered to be
preserved/protected till further order passed by any competent Court. Another Writ
Petition bearing No.1101 of 2005 was also filed by the Adam Sugar Mills Limited for
quashment of F.I.R. but in that writ S.H.O./Investigating Officer was directed to record
the statements of witnesses and collect documents which were to be produced before him
by petitioners during the investigation. Suit No.1 of 2005 was filed by Habib Bank
Limited, against Adam Sugar Mills Limited and Ghulam Ahmad Adam, defendants,
before Lahore High Court, Multan Bench, Multan for the recovery of Rs.24,14,40,620
under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In
that suit, Trading Corporation of Pakistan filed an application for its impleadment under
Order I, rule 10 of the C.P.C. but that application was rejected on 9-8-2005, and the suit
was decreed in favour of Habib Bank Limited on 8-9-2005 and writ petitioners were
allowed to pay the amount. As the suit was decreed and sugar bags lying in the premises
of Adam Sugar Mills were pledged for the loan amount, therefore, to satisfy that decree,
Adam Sugar Mills intended to remove sugar bags, so they moved the Judicial Magistrate,
Chishtian, to issue direction to the S.H.O. Police Station Chishtian, to allow them the
lifting of sugar bags, which were pledged with Habib Bank Limited, Chishtian. Upon this
application, on 27-8-2005, learned Magistrate 1st Class, Chishtian directed the S.H.O. to
allow to remove the sugar bags to the extent of 1,93,550 sugar bags, each containing 50
Kg. of sugar. Aggrieved from that order, one Zia-ud-Din, General Manager, Trading
Corporation of Pakistan filed Criminal Miscellaneous No.894/Q of 2005 in this Court, for
setting aside the order of learned Magistrate 1st Class. Another Writ Petition bearing
No.3094 of 2005 was filed by Ziauddin, aforementioned General Manager for issuance of
direction to the D.P.O. and S.H.O. to keep the custody of 12000 M.T. equal to 2,40,000
sugar bags of 50 Kg. each, case property of F.I.R. No.126 of 2005 intact, and not to allow
Adam Sugar Mills to remove those sugar bags from the store of the Sugar Mills. On 3-9-
2005, another order was passed by the learned Magistrate 1st Class, Chishtian by which
he appointed Mr. Maqsood Ahmad Bhatti, Advocate as a Local Commission, authorizing
him to visit the spot, where the sugar bags were lying and get 2,40,000 sugar bags of 50
Kg. separated and allow the Management of Adam Sugar Mills to remove the remaining
sugar bags. Feeling aggrieved from that order, also, Writ Petition No.3243 of 2005 was
filed by aforesaid Ziauddin, General Manager, of Trading Corporation, in this Court.

5. Messrs Adam Sugar Mills filed the instant Writ Petition No.1437 of 2005 against
Trading Corporation of Pakistan, in which although many prayers were delineated in the
prayer para., yet for the sake of brevity, I would note here that it was in fact filed for
quashment of F.I.R. No.126 of 2005 lodged under section 406 of the P.P.C., as mentioned
above, and for issuance of direction for removal of police force, from the premises of
Sugar Mills, and restraining them to harass the petitioner. hi this writ petition, copy of the
contract, orders of the Honourable Sindh High Court were appended . An order, dated 14-
4-2005 has been attached with this writ petition in which, the learned Judge of that Court
had directed the plaintiffs to deposit the entire amount which was received by the plaintiff
through the above noted admitted contract, within two weeks. Appended with this writ
petition, is another order dated 1-6-2005, passed by learned Division Bench of Sindh
High Court in an Appeal No.32 of 2005, by which the official assignee was appointed to
inspect the factory of appellant to ascertain as to whether the sugar proposed to be sold
was available in the store of Adam Sugar Mills or not? If so, to what quantity?

6. In Criminal Miscellaneous No.894/Q of 2005, another order, dated 17-5-2005 passed

in suit titled Trading Corporation of Pakistan v. Adam Sugar Mills Limited etc. appears
on the record, which was passed by the learned Judge of that Court on the basis of which
the defendant Adam Sugar Mills was directed to deposit the amount with Nazir of this
Court, within a week's time. In Appeal No.132 of 2005, learned Division Bench of that
Court had modified the order passed by learned Single Judge in Chamber, and had
directed the appellant (Adam Sugar Mills) to deposit with the Nazir of that High Court, a
sum of Rs.15,83,04,000 within four weeks from the date of that order and was also
commanded to furnish bank guarantee of Rs.98,94,000 to Nazir of that Court. The
amount deposited was to be invested in the some Government Savings Scheme.

7. From the above noted facts, factual aspect of the case can be summed up that upon the
alleged breach of contract of sale of sugar, entered into between Adam Sugar Mills and
Trading Corporation of Pakistan, a suit for specific performance is pending with Sindh
High Court, which has been filed by Trading Corporation of Pakistan against Adam Sugar
Mills Limited, in which Adam Sugar Mills, as according to the learned counsel,
representing the Adam Sugar Mills, the defendant has deposited the ordered amount with
the Nazir of that Court and the suit proceedings are being continued with that Sindh High
Court at Karachi, whereas F.I.R. No.126 of 2005 has been registered with the Police
Station City Chishtian, and for the quashment of which, Adam Sugar Mills has prayed
through this writ petition as this criminal case has been filed within the jurisdiction of this
Court.

8. Learned counsel appearing on behalf of writ petitioners, Messrs Adam Sugar Mills
Limited submit that:-

(i) F.I.R. No.126 of 2005 may be quashed, as the story narrated in it does not bring out
any commission of offence of section 406 of the P.P.C. No criminal breach of trust or
misappropriation can be found to have been committed by the petitioner. In other words,
the provision of section 406 is not applicable or attracted to the case registered by the
police. He has referred to Central Board of Revenue and others v. Khan Muhammad PLD
1986 SC 192.

(ii) The civil matter has been brought into criminal action by the Trading Corporation of
Pakistan, respondent No.1. He has referred to Miraj Khan v. Gul Ahmad and 3 others
2000 SCMR 122.
(iii) The breach of contract, if it was committed by any party, the other party had the right
to invoke para.14 of the Contract with regard to the provision of Arbitration. In the
presence of that clause, criminal case cannot be got registered.

(iv) It has also been argued by the learned counsel that clause (9), sub-clause (d) of the
Contract, permits the petitioner to refuse to deliver sugar bags, if entire amount has not
been paid by the buyer. As the full amount was not paid by the Trading Corporation of
Pakistan, therefore, sugar was not. delivered to it. As per learned counsel, breach was
committed by Trading Corporation of Pakistan by non-payment of the remaining amount,
therefore, the writ petitioners were within their right not to deliver sugar bags to
respondent No. 1.

9. In reply to the contention raised by the learned counsel for the petitioners, it has been
replied by respondent's learned counsel that the petitioners cannot file successive writ
petitions, one after the other, on the same subject-matter, as it was not maintainable and
entertainable in law. As per learned counsel, this is the third writ petition which has been
filed on the same subject. He has referred to Writ Petition No.959 of 2005; Writ Petition
No.1101 of 2005, and the instant Writ Petition bearing No.1437 of 2005.

10. Explaining his contention, it has been stated by him that first Writ Petition No.959
was filed on 29-3-2005 against the D.P.O. but later on Ziauddin was made a party to it on
26-4-2005, but that writ petition was disposed of. Remedies sought through that writ
petition by the petitioner was issuance of direction to the police, not to harass the
management of the Mills and police deployed to the Mills, might be directed to leave the
premises of the Mills. An order dated 26-4-2005 was passed in that writ petition, which
had become final. In the second Writ Petition bearing No.1101 of 2005 also, prayer for
quashment of an F.I.R. was made, in which all the points were taken up which now have
been agitated in the instant writ petition but that writ petition, was disposed of on 11-4-
2005 with direction to S.H.O./Investigating Officer to record the statement of witnesses
and collect all those documents which were to be produced by the writ petitioner.
According to the learned counsel, prayer for quashment was in fact refused while that
order was passed by this Court, therefore, the instant third Writ Petition bearing No.1437
of 2005 is not maintainable. He has referred to Pir Bakhsh v. The Chairman Allotment
Committee PLD 1987 SC 145 and Abdul Waheed Qureshi v. Municipal Committee,
Lalamoosa and 3 others 2004 YLR 1206. As res judicata is applicable to the writ petition,
therefore, second petition cannot be filed on the same subject-matter. He has further
referred to Waheed Azmat Sheikh v. Chairman Habib Bank Ltd. and 2 others 2002 CLC
929 and Mst. Azra Israr v. Inspector-General of Police, Punjab and others PLD 2003 Lah.
1.
11. Civil proceedings and criminal proceedings can proceed simultaneously, therefore,
filing of a suit for specific performance for the contract by the Trading Corporation of
Pakistan, respondent No.1 in the Sindh High Court was not a bar to proceed with the
criminal case of F.I.R.

12. Quashment of F.I.R. cannot be ordered by this High Court. As no investigation has
been completed as yet, so, this Court has got no jurisdiction to quash the F.I.R. For this
proposition, he has referred to Ahmad Saeed v. The State 1996 SCMR 186. Even in the
first writ petition, the quashment of F.I.R. could not be made/ordered by this Court. The
investigation being underway, the writ petition was not competent. Learned counsel has
referred to M. Arshad v. The State PLD 2004 Lah. 70 and contends that proceedings of
civil and criminal nature and liabilities can continue simultaneously. Criminal
proceedings cannot be stifled, at this stage. Learned counsel has relied upon Ghulam
Qasim v. Nazir Ahmad and 3 others 1996 PCr.LJ 1187; Muneer Ahmad v. The State and 2
others 2004 YLR 2748; Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3
others 2000 SCMR 238 for that.

13. As regard arbitration, the petitioner had got the opportunity of filing an application
before the Sindh High Court, which remedy was not availed of by the petitioners
themselves, as they had not filed such an application and suit was allowed to be
continued before that Court.

14. The objection raised by the petitioners' learned counsel that Ziauddin, General
Manager, Trading Corporation of Pakistan cannot file writ petition is not applicable to the
writ petition filed by Trading Corporation of Pakistan as Order XXIX, rule 1 of the C.P.C.
is applicable to suits and not to the writ petitions. He argues that Muhammad Siddique
Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684 is not
relevant to the instant case. If a plaint is verified by the Principal Officer of the
Corporation/Company, it is sufficient compliance of Order XXIX, rule 1 of the C.P.C.,
because the authority under this provision of law provided is the Principal Officer, and
that General Manager of Trading Corporation of Pakistan is the Principal Officer of that
corporate body. He has cited Abdul Islam Qureshi v. Judge, Special Court of Banking for
Sindh and others PLD 1984 Kar. 462 and states that Order XXIX, rule 1 of the C.P.C. is
of permissive nature and not a mandatory one. Learned counsel has also referred to
Calico Printers Association Limited v. A.A. Karim & Brothers AIR 1930 Bom. 566 and
Mohan v. The Crown AIR 1925 Lah. 338. As per learned counsel, there is a difference
between the person filing of a writ petition and the plaintiff. As the writ petitioner is an
aggrieved person within the meaning of Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, he is competent to file writ. He has cited Calicon (Pvt.) Ltd.
v. Federal Government of Pakistan and others 1996 MLD 705 and Ghulam Nabi Awan,
Advocate v. Government of Pakistan and 3 others 2003 MLD 90.

15. The disputatious, and contentious subjects raised by both the parties' learned counsel
and the facts of the case as laid have swayed me to arrive at the following conclusions:--

(a) The main and vital question involved in the case through this judgment is as to
whether criminal proceedings initiated and commenced through the F.I.R. in the presence
of civil proceedings should be allowed to continue or be quashed? The next question
which has to be attended is as to whether this Court has got jurisdiction to quash the
F.I.R. during the investigation in a given peculiar fact and circumstances of the case. And
whether successive writ petitions can be filed or not?

(b) Before proceeding with the judgment, I deem it necessary that the jurisdiction of this
Court upon which clouds have been cast through arguments of the learned counsel of the
respondent be cleared up. Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 is admittedly a constitutional provision and relates to jurisdiction conferred by the
Constitution upon this Court. All other laws which are legislated or framed, fall within
the encompass of sub-constitutional legislation and those laws cannot claim superiority
over the constitutional powers and jurisdiction vested under Article 199 of the
Constitution upon this Court as it has got vast powers and jurisdiction to deal with all the
situations which have been brought to the notice of this Court through the institution or
filing of the writ petition, therefore, no objection can be raised that this Court has got no
jurisdiction to quash criminal proceedings or F.I.R. The powers and jurisdiction of this
Court cannot be restricted through any law, which are not the part and parcel of the
Constitution. In other words, the sub-constitutional legislation cannot supersede or take
away the powers of constitutional jurisdiction of this Court. There is no restriction,
prohibition, bar or impediment in the way for administering justice in a given case
brought under Article 199 of the Constitution. Accordingly keeping in view the powers
and jurisdiction, it cannot be held that this Court has got no jurisdiction in the matter of
quashment of an F.I.R. or during the proceedings of investigation of an F.I.R. It is a self-
restraint for a Judge not to interfere into the domain of investigation proceedings because
it would result into strangulation and stifling of the proceedings of the investigation. It
does not mean that it is a hard and fast rule in each and every case, and the Court is
denuded of its powers to quash the proceedings even being carried on without
jurisdiction, based on mala fides, abuse of the process of the law or of the Court. The
presence of jurisdiction cannot be equated with the negation of jurisdiction. Power and
jurisdiction remains vested with this Court but as to how, and in what situation, facts and
circumstances, it has to be exercised, is the question to be resolved in each and every
case. In Ahmad Saeed v. The State 1996 SCMR 186, it was held by the Honourable
Supreme Court of Pakistan that an F.I.R. cannot be quashed by the High Court in exercise
of its powers under section 561-A of the Cr.P.C. But the distinction must be kept in view
between the provision of section 561-A of the Cr.P.C. and Article 199 of the Constitution
of Pakistan. M. Arshad v. State PLD 2004 Lah. 70 in that case my learned brother Mr.
Rustam Ali Malik, J., as he then was, had held that this Court had got jurisdiction under
Article 199 to quash the F.I.R. In fact, that judgment has fortified my above noted view
and findings regarding the vesting of powers and jurisdiction in this Court, under Article
199 of the Constitution, to quash the F.I.R. In this judgment, my learned brother had
refrained to exercise the jurisdiction due to circumstances of that case but it was declared
in that case that this Court had jurisdiction to quash. Therefore, this ruling has not been
found helpful for the case of respondents. In the latest ruling Miraj Khan v. Gul Ahmad
and others 2000 SCMR 122 the apex Court of this country has held that the High Court
has got inherent jurisdiction even under c section 561-A of the Cr.P.C. In exceptional
cases to quash the proceedings without awaiting the order of trial Court under section
249-A or 265-K of the Cr.P.C. In Muhammad Yaqoob v. S.H.O. and others 1997 MLD
2097 by exercising powers under Article 199 of the Constitution, the F.I.R. was quashed
as the matter was already sub judice before Civil Court and the criminal proceedings
were commenced through registration of the case.

(c) The registration of criminal case by the police has in fact sprung up from the alleged
breach of terms of contract. It is an admitted fact that in fact, breach of contract which is
being alleged by the one party against the other is the main cause for registration of the
F.I.R. It is the consequence of the violation of terms of the contract. Before analysis of
the contents of the application, forwarded to the S.H.O., Police Station City Chishtian,
upon which F.I.R. No.126 of 2005 was registered, I would like to reproduce it for ready
reference:

"To:

The S.H.O. Police Station Chishtian District Bahawalnagar.

From:

General Manager (Export and Marketing), Trading Corporation of Pakistan, Karachi.

No.E&M/Sug/Cont-181/2004, dated Saturday 26th March, 2005.

Subject: Illegal dispossession of TCP's muccadum by Messrs Adam Sugar Mills,

Chishtian and taking over TCP stocks illegally.

Government owned Trading Corporation of Pakistan (TCP) purchased a quantity of

12,000 MT sugar from Messrs Adam Sugar Mills Limited, Chishtian in May, 2004, Sales
Tax on the purchased sugar according to SRO of C.B.R. will be paid by TCP at the time
of lifting of sugar by TCOP. TCP has not yet lifted the sugar from the Mills. Owing to the
recent price increase of sugar, Messrs Adam Sugar Mills have illegally and unilaterally
cancelled the contract of the sale of sugar with TCP and have expelled TCP's muccadum
(who was appointed to oversee the custody of TCP's sugar stock of 12,000 Mt) from the
mill forcibly on 24th March, 2005 and taken over possession of the stock illegally, with a
view to earn windfall profit on the sale of TCP's/Government stocks.

(2) The action on the part of mill-owners amounts to interference with Government
property and its forcible possession with the intention of disposing it off illegally.
Immediate and drastic action is, therefore, required to be taken by you. against Messrs
Adam Sugar Mills to secure and protect Government/TCP stocks at the mills otherwise
there is great likelihood that the mill owners may dispose of these stocks and cause
colossal loss to the Government. Our muccadum Messrs Friends Syndicates should also
be restored at the mills and the possession of TCOP's stocks be given over to him. (Copy
of our muccadum Messrs Friends Syndicates letter dated 25th March, 2005 is enclosed
for ready reference).

(3) It is requested that you may immediately register a case against Mr. Ghulam Ahmad
Adam, Chief Executive of the Adam Sugar Mills, Chishtian, as well as the Manager of
the mills, under the relevant, sections of the Pakistan Penal Code.

(Sd.) (Ziauddin Ahmad)."

From the bare reading of the contents of the above noted application, the foundation of
F.I.R., it is unveiled that Trading Corporation is claiming the sugar stock of 12000 M.T.
into its E custody. Complaint in that narration has been made with the following words:

"Messrs Adam Sugar Mills have illegally and unilaterally cancelled the contract of the
sale of sugar with TCP and have expelled TCP's muccadum (who was appointed to
oversee the custody of TCP's sugar stocks of 12,000 MT) from the mill forcibly on 24th
March, 2005 and taken over possession of the stocks illegally, with a view to earn
windfall profit on the sale of TCP's/Government stocks."

This sentence has actually in my considered opinion destroyed the case of Trading
Corporation of Pakistan for the continuance of criminal proceedings. The most important
ingredient of section 406 of the P.P.C., is the commission of offence of criminal breach of
trust, the definition of which is found in section 405 of the P.P.C., the reproduction of it
for prompt comprehension is being made as under:--

"405. Criminal breach of Trust.- Whoever, being in any manner entrusted with property,
or with any dominion over property, dishonestly misappropriates or converts to his own
use that property, or dishonestly uses or disposes of that property in violation of any
direction of law or prescribing the mode in which such trust is to be discharged, of any
legal contract, express or implied, which he has made touching the discharge of such
trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."

From its plain reading, at the very outset, the entrustment, grant of possession or
dominion over the property is one of the most essential part of the offence. The version of
the Trading Corporation of Pakistan is that they were delivered the sugar bags of 12,000
M.T. for which they had appointed "Muqaddam" to oversee, the custody of Trading
Corporation's sugar stock. If that version is correct as noted in the application itself
(F.I.R.) it would not warrant the registration of F.I.R. under section 406 of the P.P.C.
because the petitioner would not in such case be considered or held to have been
entrusted with custody of the sugar. The sugar would be lying in the alleged custody of
Trading Corporation of Pakistan itself. In such an event, the petitioner cannot be held to
have committed criminal breach of trust. For the commission of offence under section
406 of the P.P.C., if there is no entrustment or dominion granted over the property to a
person, the breach of trust cannot follow. In fact, it is the trust created and a person is
conferred powers or entrusted with the property, and thereafter if commits
misappropriation or dishonestly coverts or disposes of that property, then section 406 of
the P.P.C. would come into operation. If the property has not been entrusted or control
over it has not been granted, then no offence of breach of trust can be held to have been
committed. The management of the petitioner Mills may have committed any other
offence but not the offence of section 406 of the P.P.C. from the plain and bare reading of
the F.I.R. can' be found. The case registered against the Management of Adam Sugar
Mills under section 406 of the H P.P.C. is, therefore, illegal and unlawful and cannot be
allowed to be proceeded against, as it would be an abuse of the process of law, and would
be giving birth to more and more cases on its basis. Therefore, the F.I.R. and its ensuing
proceedings require to be quashed.

16. There is another aspect of this case also. As pointed out above, the present F.I.R. is
the result of the alleged breach of terms of contract. To look it deeply, it appears an
attempt of Trading Corporation of Pakistan to settle the civil dispute through initiation
and commencement of criminal proceedings, which abuse cannot be allowed to
perpetuate.

17. The filing of suit for specific performance of contract has gone to demolish the case
of Trading Corporation of Pakistan. If sold out sugar has already been delivered to
Trading Corporation of Pakistan, then why the above mentioned suit was filed, especially
when according to Trading Corporation of Pakistan's own version full amount was also
not paid by the Trading Corporation of Pakistan to the Mills. The filing of suit itself
shows that delivery of sugar as alleged was never made to Trading Corporation of
Pakistan.

18. Petitioners' learned counsel has referred to condition No.9(d) under the head of
"Storage and replacement of sugar" of the contract (admitted contract), which clearly
depicts that Mills in case of its failure to deliver the sugar or if the sugar is delivered, but
did not thereafter replace it with fresh sugar, would be liable to refund the entire payment
along with settled mark-up and penalty. From this term of the contract even, Mill was
permitted to use the stock of sugar for its own benefit but was bound down to replace it
with fresh stock of sugar. Therefore, from this condition, criminal breach of trust was not
to arise. It could at the most give birth to civil liability, not liable to be settled through
criminal proceedings. The continuance of criminal proceedings in which there is no
expectancy of probability of even charge succeeding, would be merely an abuse of
process and nothing more.

19. The contention raised by the respondent's learned counsel is that successive writ
petitions have been filed and the instant writ petition is, therefore, not competent, because
of it not maintainable in. the eye of law. Although Writ Petition No.1101 of 2005 was
filed by Ghulam Muhammad Adam and Abdul Karim, the Chief Executive and General
Manager of above mentioned Mills for quashment of F.I.R. but this prayer was never
refused by this Court at any stage by this Court. The Court was in fact trying to give a
chance/an opportunity to police to conclude the investigation by itself. It was, therefore,
that the Investigating Officer was directed to record the statement of the witnesses and
collect all those documents which were to be produced before him by the petitioner. It has
also been admitted by the learned counsel for the respondent that the aforesaid petitioners
have produced a written application before the Investigating Officer but have not
produced any witness. It may be so question is that as to whether the above noted order,
dated 11-4-2005 passed in the above noted writ petition can be treated as a res judicata or
barring the instant writ petition to be tiled for quashment. I cannot subscribe to the view
of the learned counsel for the respondent that the above noted order was an impediment
in the way of this Court to exercise its jurisdiction and permit the continuance of criminal
proceedings, which are merely an abuse of process of law and is going to cause
irreparable loss to both the parties in future.

20. The slothful pace of investigation and multiplicity of proceedings have inspired me to
decide the cases at this stage to save not only the parties' energy but that of the Court and
not to allow the parties to indulge in fruitless and vicious circles of litigation. It is an
admitted fact that sugar is a perishable commodity which is vulnerable to natural decay.
One year has already passed in this litigation, the prospect of which is not turning into
any immediate decision in the near future. If sugar is allowed to be kept in the store and
not allowed to be used for human consumption, it would convert into an unhygienic
commodity which would not be beneficial for the parties and human beings. The
detention of sugar would cause inconvenience, loss and damage to both the parties, so I
have considered its prompt disposal necessary.

21. It has been admitted that Trading Corporation has already filed a suit for specific
performance of contract which is pending before the Sindh High Court wherein the
interest of the Trading Corporation of Pakistan has been safeguarded by directing the
petitioner, Adam Sugar Mills to deposit the paid up amount under the contract with the
Nazir of that Court, which the petitioners are stated to have deposited with the Nazir of
that Honourable Court. In these circumstances, the respondent, Trading Corporation
cannot be allowed to avail of the benefit from two different places for one and the same
cause of action.

22. It would be, therefore, causative of miscarriage of justice that on the one hand, the
Adams Sugar Mills be asked to deposit the amount received through the contract and to
deposit in the Court and on the other hand, allow the Trading Corporation of Pakistan to
retain the possession of sugar in its alleged custody or to sell it. Trading Corporation of
Pakistan having itself initiated proceedings through a civil suit before the High Court
Sindh at Karachi, cannot avail two benefits at a time. Therefore, I do not consider it just
to burden the petitioner to deposit more amount (as it has already been deposited with the
Sindh High Court). Accordingly, I allow the writ petitioners, Messrs Adam Sugar Mills
Limited Chishtian to lift the sugar bags after filing an undertaking surety bond with the
Deputy Registrar of this Court that in case the High Court of Sindh passed an order
regarding delivery of sugar bags of 12,000 M.T. to the Trading Corporation of Pakistan,
the Management of the Adam Sugar Mills Limited shall deliver such sugar bags to
respondent i.e. the Trading Corporation of Pakistan.

23. As regard the objection raised by the petitioners' learned counsel that writ petitions
and criminal miscellaneous filed by Ziauddin, General Manager of Trading Corporation
of Pakistan without specific and clear authorization are not competent, I do not find it
correct in consonance with law. Learned counsel for the respondent has correctly replied
that there is distinction between the filing of the suit and of the writ petition. A suit filed
under Civil Procedure Code by or against Corporation is to be instituted or defended in
accordance with Order XXIX, rule 1 of the C.P.C. but when a writ is being filed, its
competency has to be examined according to wordings of Article 199 of the Constitution
of Islamic Republic of Pakistan, 1973, wherein an aggrieved party has been allowed in
sub-Articles (1) of Article 199 of the above mentioned Constitution to file such a petition
(the writ petition). According to judicial pronouncements of the Honourable Supreme
Court of Pakistan, if a person has got any interest, may it be of smallest one, in the
performance of legal duty of a person, functioning with affairs of Province or a local
authority, the petition can be filed by such person. Therefore, viewed with this angle,
General Manager of Trading Corporation of Pakistan can very well be held as an
aggrieved party in whole of these proceedings. So this objection raised by the learned
counsel for the petitioner is not sustainable in the eye of law.

24. The writ petitions and criminal miscellaneous in nutshell are decided as under:-

(i) The case of F.I.R. No.126 of 2005 dated 28-3-2005 registered with Police Station City
Chishtian under section 406 of the P.P.C., is declared to be illegal and an unlawful,
consequently is quashed.

(ii) Management of Messrs Adam Sugar Mills Limited is allowed to lift the sugar bags of
12,000 M.T. from their own Mills, subject to furnishing undertaking and surety bond to
the Deputy Registrar of this Court that in case the Sindh High Court passed an order
regarding delivery of sugar bags of 12,000 M.T. to the Trading Corporation of Pakistan,
the Management of Adam Sugar Mills Limited shall provide and deliver the custody of
such sugar bags, and in case of their failure, they would be liable to be proceeded against
under the contempt of Court, and shall pay the amount of sugar along with interest and
the penalty imposed by this Court or the Sindh High Court.

25. Subject to above noted decision/direction and observation, all the writ petitions as
well as criminal miscellaneous are disposed of.

N.H.Q./A-645/L F.I.R. quashed.