' 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-udDin 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 detail 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: spending.
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 favor 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. In 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 Born. 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 swa yed 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 A 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 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 ID 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,2 005 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 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, IG 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 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 I 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 filed 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 K 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.
F.I.R. Quashed.