Through the instant petition, the petitioner seeks quashing of F.I.R. No.279, dated 04.04.2022, offence under section 406 P.P.C., registered at Police Station Noon, Islamabad.
02. Brief facts of the case are that respondent No.2 / complainant of F.I.R. in order to purchase land from the petitioner issued a cheque bearing No.09195289 drawn in Allied Bank, G-13 Branch amounting to Rs.50,00,000/- (Rupees Five Million); said cheque was encashed on 26.03.2018; respondent No.2/complainant approached the petitioner many times for the transfer of land, Jirga was also conducted but the petitioner refused to transfer the land in the name of respondent No.2/complainant, hence the petitioner has committed an offence of criminal breach of trust, resultantly respondent No.2/complainant got registered a case vide F.I.R No.279, dated 04.04.2022, u/s 406 P.P.C. at Police Station Noon, Islamabad.
03. Learned counsel for the petitioner, inter alia, contends that allegations leveled in the FIR are purely of civil nature; the petitioner has never received any earnest money / cheque from respondent No.2; neither entered into any agreement to sell; cheque mentioned in F.I.R. was received by the petitioner from one Abdul Waheed who executed sale agreement of land with the petitioner and failed to pay the remaining sale consideration within stipulated time; suit for specific performance was filed by Abdul Waheed against the petitioner which was dismissed due to non- deposit of sale consideration; F.I.R. is abuse of process of law as no cognizable offence is made out; matter is purely of civil nature; allegations leveled in FIR are false, frivolous, baseless and vexatious, hence F.I.R. is liable to be quashed.
4. Conversely, learned counsel for respondent No.2 states that the petitioner agreed to sell land in Khasrat No.300 to 399 of Mouza Noon to respondent No.2, received cheque amounting to Rs.50,00,000/- which was encashed by him but said land was not transferred and FIR has rightly been registered, hence the instant writ petition is liable to be dismissed.
5. Arguments heard, record perused.
06. As per contents of F.I.R., the matter pertains to the year 2018; there is no date of occurrence mentioned in F.I.R.; admittedly no sale agreement has been executed between the petitioner and respondent No.2; cheque was encashed on 26.03.2018 and FIR has been registered on 04.04.2022, i.e. after the delay of four (04) years from the date of encashment of cheque.
07. According to version of the petitioner, said cheque was handed over to him by Abdul Waheed s/o Muhammad Aslam who executed a sale agreement; he also filed a suit for specific performance against the petitioner which has been dismissed due to non-deposit of balance sale consideration; the petitioner has also filed a suit for declaration, recovery of possession, permanent and mandatory injunction against abdul waheed in civil Courts of Islamabad.
08. Respondent No.2 / complainant of F.I.R. has also filed a suit for recovery of amount of Rs.50,00,000/- (Rupees five million), declaration, mandatory and perpetual injunction alongwith consequential relief against the petitioner which has been mentioned in the cheque upon which F.I.R. has been registered.
09. Under section 406, P.P.C., essential ingredients for the offence of criminal breach of trust are as follows:- a) Entrustment. b) Dishonest misappropriation or conversion to his own use by the person in whom the confidence reposed. c) Dishonest use or disposal of property in violation of any direction of law. d) Dishonest use or disposal of property in violation of any legal contract.
In view of above ingredients of criminal breach of trust, breach of any term of agreement to sell does not fall within the above mentioned criteria as the agreement to sell has been created under Contract Act, 1872 where one party signifies his willingness to do or not to do anything against a consideration and if the same has been accepted by the other party it becomes a promise whereas the said promise if enforceable by law creates the term "contract". Hence it is manifestly clear that any agreement requires an offer/proposal, acceptance, promise, consideration and enforceability then the same creates the reciprocal obligations agreed between the parties. It is agreed to perform the obligation whereas payment of money does not fall within the preview of "entrustment" of property in terms of section 406, P.P.C., even otherwise, there is no misappropriation if the seller after receiving the sale consideration or part of sale consideration refused to transfer the property or failed to abide the terms of agreement as the said failure or breach of terms could not be equated with dishonest use, disposal of the property, violation of any legal contract, however, any breach of such agreement has a remedy under Specific Relief Act, 1877 where one can seek specific performance of a contract if the same is enforceable by law and the court of law has to see which party is responsible for refusal or failure to abide by the terms of the contract. As a result of said evaluation by the court of law either the defendant has been directed to perform the contract or pay the damages under the said law.
10. The above referred scheme of law under Specific Relief Act, 1877 provides a mechanism which covers all those contracts between the parties which have been executed in terms of Contract Act, 1872 and their remedies are only provided in Specific Relief Act, 1877 where the ingredients of criminal breach of trust have no space as the concept of mens rea could only be assessed by the criminal court whereas the agreement does not fulfill the requirement of criminal breach of trust.
Reliance is placed on a case titled as "Muhammad Nawaz vs. SHO, Police Station, Sabzi Mandi, Islamabad and others." (2017 PCr.LJ 133).
11. Contents of the FIR clearly show that complainant has given the above mentioned sum of money to the petitioner for purchase of land and not by way of entrustment. It has been held by Hon'ble Supreme Court of Pakistan in a case titled as "Shahid Imran vs. The State and others" (2011 SCMR 1164) that: "The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or property is to be retained and preserved for its return to the given and the same is never meant to be utilized for any other purpose."
It is further held that: "Agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in section 405, P.P.C. and such a breach is not synonymous with criminal breach of trust without there being a clear element of entrustment therein which entrustment has been violated."
Reliance in this regard is also placed on following case laws: i. "State of Gujrat vs. Jaswantlal Nathalal" (AIR 1968 SC 700) ii. "Punjab National Bank and others vs. Surendra Prasad Sinha" (1994 PSC (Crl) 768) iii. "Shaukat Ali Sagar vs. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900) iv. "Ghulam Ali vs. Javid and another" (1989 PCr.LJ 507) v. "Nga Po Seik vs. Emperor (1917 Indian Cases 824) vi. "Kornai Lal Dutta vs. The State" (AIR 1951 Cal 206) vii. "Badar Ur Islam v. District Police Officer, Faisalabad and 3 others" (2007 YLR 2766) viii. "Rana Saeed Ullah v. Inspector General of Police and 6 others" (2013 YLR 2513) ix. "Umair Aslam v. Station House Officer and 7 others" (2014 PCr.LJ 1305) x. "Mufti Pervaiz Manzoor v. The State and 2 others" (2011 PCr.LJ 1241) xi. "Rafiq Haji Usman v. Chairman, NAB and another" (2015 SCMR 1575)
12. The following principles of quashing of F.I.R have been laid down by the Hon'ble Supreme Court of Pakistan in a case titled as Miraj Khan Vs. Gul Ahmed and 3 others (2000 SCMR 122), that:- "4. There is no absolute bar on the power of the High Court to quash an F.I.R. and it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249-A, Cr.P.C. It is coordinal principle of law that every criminal case should be adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid in a certain case so as to be made applicable to other cases.
Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial.
5. We are of the view that even on admitted facts no offence can be made out against the respondent as the dispute is entirely of civil nature which has been converted into criminal proceedings with ulterior motive. The High Court was, therefore, correct in quashment of the F.I.R. and no exception can be taken to the impugned order. Consequently, leave to appeal is refused and this petition is dismissed".
13. Reliance is also placed on the following case laws, wherein the Hon'ble Supreme Court of Pakistan has held that the High Court can exercise the discretion to declare any act of police officials without any lawful authority. i. Raja Haq Nawaz Vs. Muhammad Afzal and others & Raja Haq Nawaz Vs. Subedar Sakhi Muhammad and others (1968 SCMR 1256). ii. Rizwana Bibi Vs. The State and another (2012 SCMR 94).
14. In view of above referred reasons High Court in inherent powers under section 561- A, Cr.P.C can exercise the jurisdiction to prevent the abuse of process of law which is apparent from record especially when there is no agreement between the petitioner and respondent No.2 as he had already filed a suit for recovery of 5 million; competent civil court has already exercised its jurisdiction. The matter in dispute is purely of civil nature; no limit can be put a clog on the exercise of inherent powers of this Court to make such orders as may be necessary to give effect in order to prevent the abuse of process of any court or otherwise to secure ends of justice, therefore, the instant writ petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C., is hereby allowed and impugned proceedings in case FIR No. 279/22 dated 04.04.2022, offence under section 406, P.P.C. P.S Noon, Islamabad are quashed. Needless to add that quashing of FIR shall not affect the civil dispute, if any, between the parties in any manner.