Rani Bibi vs Jop etc.

Writ Petition No. 24823/2013

Mst. Rani Bibi. Ex. Officio Justice of Peace/ASJ etc.

2.17.12.2013 Mr. Naveed Anwar Chaudhry, Advocate for the petitioner.

Mr. Ashfaq Ahmad Kharal, Assistant Advocate General with Muhammad Naveed, Inspector. Mr. Munazzar Ghani Chaudhry, Advocate for respondent No.3.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has prayed for setting aside the order dated 22.7.2013 passed by the learned Ex. Officio Justice of Peace whereby application of respondent No.3 seeking registration of case was accepted.

2.Briefly, respondent No.3 approached respondent No.2 to register a criminal case against the petitioner by stating that she gave Rs.1,00,000/- to the proposed accused for business purposes who agreed and kept the amount on trust basis. Later on, the petitioner demanded further amount from respondent No.3 for business and for this purpose she received gold locket and chain of her daughter but the petitioner did not pay even a single penny to respondent No.3 on account of profit who moved an application to the concerned SHO but failed

and consequently respondent No.3 succeeded to get the order, impugned herein, by filing an application under section 22-A, 22-B Cr.P.C. seeking registration of case against the petitioner before the learned Ex. Officio Justice of Peace/ASJ which was accepted vide order dated 22.7.2013 with the direction to the SHO concerned to record the version of the petitioner and proceed further in accordance with law while invoking section 154 Cr.P.C., hence this petition.

3.I have heard the arguments of the learned counsel for the parties and have gone through the record.

4.The contents of petition under section 22-A, 22-B Cr.P.C. moved by respondent No.3 reveals that the entrustment was made pursuant to business transaction whereas the law clearly recognizes a distinction between payment/installment of money and entrustment of money or property. The facts of the application for registration of criminal case do not fulfill ingredients contained in Section 405 P.P.C. as such provision of section 406 P.P.C. do not attract to the facts of the case. Section 405 PPC and 406 PPC is reproduced herein:-

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 use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, with he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.

406.Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a tem which may extend to (seven) years, or with fine, or with both.

5.In the instant case, the amount was given to the petitioner for business purposes and was not to be kept by the petitioner on trust. More over, neither date, time and place nor name of witnesses was mentioned in the application to prove her assertion. Respondent No.3 also handed over gold chain and locket of her daughter to the petitioner as further money was required for business purposes. Admittedly there is a business dispute between the petitioner and respondent No.3 and as such the matter is not of entrustment of property but is simply one of investment of property/money. It appears that respondent No.3 is trying to culminate the business dispute into criminal one. The material annexed with this petition reflects that the dispute between the parties is one of

civil nature whereas the courts are not supposed to issue direction for registration of case in mechanical manners, the court should apply his judicious mind as to whether the applicant come to the court with clean hands or it is tainted with malafide. Keeping in view the above facts and circumstances of the case, it is revealed that the application seeking registration of case filed by respondent No.3 was tainted with malice and creates doubt regarding the occurrence in the manner it’s took place. Even otherwise, the Courts were never supposed to shut their eyes from other aspects of the case and to pass order for registration of case on false applications of the applicant. The malafide on the part of respondent No.3 is apparently floating on the record.

6.Resultantly, this petition is accepted and the order dated 22.7.2013 passed by the learned Ex-Officio Justice of peace has been declared null and void and the same is hereby set aside.

(Aalia Neelum) Judge Approved for reporting.

Judge Hamid/*