Tanveer Ahmad, respondent/complainant, got registered a case FIR No, 620 of 2008 dated 29.05.2008 under Section 406 PPC at Police Station, Baghbanpura, Lahore with an allegation that Zahid Jameel a factory owners, 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 FIR to the above effect on the statement of Tanveer Ahmad, complainant, with an observation that an offence under Section 406 PPC 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 PPC.
3. Apprehending his arrest Zahid Jameel, accused, made an application for anticipatory bail before the learned Court of Session on 05.06.2008. 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 FIR 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 officiag also formed an opinion that the accused was guilty of The offence of criminal breach of trust punishable under Section 406 PPC. Before adverting to the counter claims of both the sides, I find it advantageous to reproduce below Section 405 PPC, 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 convert 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 be discharged, or of any legal contract, express or implied, which he has made touching the discharge of trust or willfully 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 FIR 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 FIR 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 FIR 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 PPC. The contention is misconceived. The FIR 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 Vs. Muhammad Ashiq (2006 S.C.M.R 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 FIRs, 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. For what has been stated above I allow this Constitutional Petition and quash the FIR.
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 & 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.