Sohail . Vs SHO PS Saddar Gujranwala etc.

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Writ Petition No.13839 of 2025 Sohail Vs Station House Officer, etc.

Sr. Date of Order with signature of Judge, and that of parties No. order or counsel, where necessary.

16.05.2025 Ch. Fiaz Ahmad, Advocate for the petitioner. Mr. Muhammad Idrees Rafique Bhatti, Assistant Advocate General, Punjab alongwith Ayaz Saleem, C.P.O, Gujranwala; Imran, SSP (Investigation), Gujranwala; Abad Ahmad, D.S.P. Gujranwala; Qaisar Shah, Inspector/SHO; Ashfaq, ASI and Ali Shan, SI with record of the case.

Sardar Muhammad Ramzan, Advocate for respondent No.2.

Through instant petition, following prayer has been made:- “It is, therefore, most respectfully prayed that this writ petition may very kindly be accepted and impugned FIR No.466/2025 dated 01.02.2025, offences U/S 406 PPC, Police Station Saddar Gujranwala may kindly be quashed declaring illegal false, malafide, null and void, and without authority in the interest of justice and fair play.

It is further prayed that till the final decision of the petition proceedings of the impugned FIR may very kindly be stayed in the supreme interest of justice.

Any other relief which this Honourable Court deems fit and proper may also be awarded.”

2.Brief however necessary facts for decision of instant petition are that Muhammad Jameel (now arrayed as respondent No.2 in the instant petition) got registered case against Sohail (now petitioner in this petition) vide F.I.R. No.466/2025 dated: 01.02.2025, under Section: 406 PPC at Police Station: Saddar Gujranwala, District Gujranwala, copy of the same is available at page No.6 of this petition and relevant portion of the same is hereby scanned below for ready reference:-

Sohail (present petitioner) seeks quashing of said F.I.R. through this petition.

3.Learned counsel for the petitioner submits that aforementioned F.I.R. is false and result of mala fide of the complainant in connivance with the police; further adds that perusal of FIR reveals business transaction therefore alleged offence has not been made out and finally prays for quashing of the

FIR.

4.On the other hand, learned counsel for respondent No.2 submits that perusal of FIR clearly reveals that there was no business transaction between the parties rather petitioner was acting as carrier of fruit of complainant and misappropriated the same which clearly attracts offence under Section: 406 PPC; further adds that FIR is based upon true facts and finally prayed for dismissal of this petition.

5.Learned Assistant Advocate-General, Punjab while submitting report prepared by City Police Officer, Gujranwala (which report has been placed on the record) and under instructions of City Police Officer, Gujranwala and other police officials including Investigating Officer of the case submits that petitioner has not joined investigation of the case, interim report prepared under Section: 173 Cr.P.C. in the case has already been sent to the Court; further adds that from the perusal of FIR, alleged offence has been made out, therefore, instant petition is without any merit and same is liable to be dismissed. Learned Assistant Advocate General Punjab under instructions of City Police Officer, Gujranwala (present before the Court) further submits that report under Section: 173 Cr.P.C. will be duly prepared and submitted in the court, in each case within prescribed time and there will be no slackness in future, in this regard.

6.Arguments heard and available record perused.

7.It has been noticed that as per contents of the FIR (mentioned above), complainant and Haji Muhammad Imtiaz do the work of sale and purchase of fruit; for the last several months, Sohail (present petitioner/accused) in the presence of Pervaiz and Muhammad Rafique had been taking fruit for supply and after collecting amount, depositing the same with the complainant, however, he misappropriated fruit commodity ( )مالand money. So, perusal of the FIR reveals that petitioner was not purchasing fruit from the

complainant rather was supplying the fruit of complainant to different persons and after supply of the same, obtaining money from concerned persons and giving said amount of fruit to the complainant party, and in this way petitioner was acting as carrier and as per crime report (FIR) he being carrier committed misappropriation of fruit commodity and money. It is relevant to mention here that offence of criminal breach of trust has been defined under Section: 405 PPC and same is punishable under Section: 406 PPC; Section 405 PPC is hereby reproduced:-

“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 to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”.

Illustrations

(a)A being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.

(b)A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse-room. A dishonestly sells the goods. A has committed criminal breach of trust.

(c)A, residing in Dacca, is agent for Z, residing at Lahore. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.

(d)But A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss yet A, not having acted dishonestly, has not committed criminal breach of trust.

(e)A, a revenue-officer is entrusted with public money and is either directed by law, or, bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.

(f)A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.”

(emphasis added)

Perusal of aforementioned illustration (f) clearly reveals that if a carrier is entrusted with property to be carried by land or water and he misappropriated property then he has committed criminal breach of trust, therefore, ingredients of the alleged offence are complete as per contents of the F.I.R., and contention of learned counsel for the petitioner that it was a business transaction which does not attract alleged offence is without any force and thus repelled. It is now well settled that quashing of F.I.R. is an extraordinary relief which can only be granted if the F.I.R. does not disclose the commission of any offence or there is any jurisdictional defect in the registration of the case; this Court always avoids to quash the F.I.R. merely by appreciation of oral or documentary versions of the parties without providing chance to cross-examine or confronting the same. By now it is also well settled that First Information Report (F.I.R.) cannot be quashed merely on the plea that same is false and concocted; in this regard, case of “Ajmeel Khan versus Abdur Rahim and others” (PLD 2009 Supreme Court 102) can be advantageously referred. So far as the allegation of mala fide of the complainant, if any, is concerned, it goes without saying that same is a question of fact, which requires proof by producing evidence without which the same cannot be resolved and admittedly said exercise cannot be done under constitutional jurisdiction of this Court. The petitioner being accused was having remedy before the investigating agency for proving his version and even now when interim report prepared under Section: 173 Cr.P.C. in the case has been sent to the Court, the petitioner has adequate remedy before the trial court to move application under Section: 249-A Cr.P.C.; in this regard, guidance has been sought from the dictum laid down by the Supreme Court of Pakistan in the case of “Col. Shah Sadiq versus Muhammad Ashiq and others” (2006

SCMR 276).

8.In view of above, instant petition is without merits, therefore, same stands dismissed. It goes without saying that observations

mentioned above are strictly confined to the disposal of instant petition and will have no bearing upon other proceedings of the case.

(Farooq Haider) Judge

Approved for reporting.

(Farooq Haider) Judge This order has been dictated, pronounced, prepared and signed on 16.05.2025.

*Irfan*