Ghulam Mustafa vs Jop etc.

Writ Petition No. 20684/2013

Ghulam Mustafa. Ex. Officio Justice of Peace/ASJ etc.

4.07.02.2014 Mr. Tariq Bashir Awan, Advocate for the petitioner.

Mr. Ashfaq Ahmad Kharal, Assistant Advocate General.

Mr. Shahzada Khurram Mirza Temuri, 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 05.8.2013 passed by the learned Ex. Officio Justice of Peace whereby application of respondent No.3 seeking registration of case was disposed of with the direction to the SHO, police station New Anarkali, Lahore to record statement of the petitioner, register a criminal case and act strictly in accordance with law.

2.Briefly, respondent No.3 was engaged in the business of sale purchase of waste paper. The petitioner made respondent No.3 believed that he always had stock available with him and he could also purchase goods from other places for him. On this, the petitioner demanded an advance amount as “Amanat” and the petitioner would be bound to return in the same condition,

whereas beside the “Amanat amount” the goods would be cleared by weight and rate. Thus respondent No.3 by way of “Biradari” and trust paid an amount of Rs.5,00,000/- as an advance to the petitioner on 14.10.2011 in presence of the witnesses. Afterwards the amount of the goods supplied by the petitioner was cleared according to the weight. The petitioner in a deceitful manner caused loss to respondent No.3 by weighing less. Accordingly, respondent No.3 refused to work with the petitioner any more. Hence, respondent No.3 demanded back the entrusted money amounting to Rs.5,00,000/-. On this the petitioner assured in presence of the witnesses that he would return the money to respondent No.3 soon and he would not breach the trust. However, despite repeated demands of respondent No.3, the petitioner had not returned the aforesaid amount. But the petitioner along with the proposed accused namely Hassan, Ahsan, two unknown persons duly armed with firearm weapons, who had been involved in different crimes and dacoity, came to the godown of the respondent No.3 at 5.00 p.m on 21.07.2013 by stating “that he had misappropriated the entrusted money” and if the respondent No.3 had any courage, get his money back. In case respondent No.3 repeated his demand then he would face the

consequences. In such like situation, respondent No.3 approached the SHO, police station New Anarkali, Lahore for registration of the case who refused to do so. Aggrieved from the conduct of the police, respondent No.3 filed an application under section 22-A, 22-B Cr.P.C. and succeeded in getting the order, impugned herein, wherein a direction was issued to the SHO concerned to record statement of the petitioner and acts strictly in accordance with law, hence this petition.

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

4.From the contents of the application for registration of criminal case, it reveals that names of the witnesses were not mentioned therein. In the instant case respondent No.3 on the demand of the petitioner paid advance amount of Rs.5,00,000/- on 14.10.2011 for purchase of waste paper. It is, however, crystal clear that on payment of said advance money, the petitioner was bound to supply goods whereas dispute between respondent No.3 and petitioner arises when the petitioner caused financial loss to respondent No.3 by supplying goods less in weight. The question still remains whether on these facts there was an entrustment

of money, in respect of which there was breach of trust was committed, falls within the meaning of section 406 P.P.C. After giving due consideration to the contentions of the parties, I have come to the conclusion that this was not a case of entrustment of money in respect of which the petitioner is supposed to have committed any breach of trust within the meaning of Section 406 P.P.C. It is also relevant to mention here that section 405 P.P.C. does not cover the case qua advance money when the depositee intends to supply goods, the business relation was intact, although the petitioner may have to return the said amount later on, to the person making the advance on failure of business. Moreover, the use of word “misappropriation” would not render an action, upon criminal breach of trust under section 405 P.P.C. By mentioning date and time of extending threats could not constitute offence in absence of witnesses before whom threats were extended to respondent No.3 as it is alleged that threats were extended at Godown of respondent No.3 but Godown Keeper or any other person were not shown as witness. The SHO, Police Station New Anarkali, Lahore had submitted para-wise comments which reflects that no criminal offence is made out and dispute between the parties is of civil nature. 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 and as such no cognizance offence is made out 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 has come to the court with clean hands or not. Even other wise 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 present case. Section 405 P.P.C is reproduced herein for ready reference:-

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 willfully suffers any other person so to do, commits “criminal breach of trust”.

5.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 manners it 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 05.8.2013 passed by the learned Ex-Officio Justice of peace has been declared null and void and the same is hereby set aside.

7.Before parting with this order, since business relation between the parties is admitted even before the “punchiat” and the disputed amount was also admitted, therefore, respondent No.3 may approach the competent court of law for recovery of the same, if so advised.

(Aalia Neelum) Judge Approved for reporting.

Judge

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