This is a petition under section 439/561-A, Cr. P. C. by Abdul Kadir Khan for quashing of the charge under section 4C6, P. P. C. by Mr. Hasan Abbas, M. I. C., Multan. The proceedings had been initiated on a complaint filed by Muhammad Saeed respondent under section 406/420, P. P. C.
2. This petition has arisen under the following circumstances: On 6-7-1968 Muhammad Saeed respondent filed a complaint against the petitioner under section 406/420, P. P. C. in the Court of Mr. Hasan Abbas M. I. C. Multan. The allegations contained in the complaint are as follows. The complainant is a building contractor. The petitioner began to build a bungalow in December 1957 at Multan and the complainant contracted to supply labour and material. The complainant continued the construction of the bungalow till August/September 1967 when the construction was completed. The accused-petitioner spent about rupees 2\ or 2| lacs on the construction of the bungalow and out of this amount a sum of about Rs. 1,35,000 was spent on the labour and material supplied by the complainant. The petitioner continued to make payment to the complainant for the labour and material supplied but a sum of Rs. 30,000 was still due from him. The accounts of the constructions were kept in a note book which was written and maintained by Mureed Hussain, deceased, Munshi of the petitioner, and subsequently by Mumtaz Hussain son of Murid Hussain deceased. On 4-7-68 the complainant along with Mistri Khuda Bakhsh and Mistry Allah Ditta went to the bungalow of the petitioner with the note book to settle accounts. The complainant showed the accounts in the note book to the petitioner and demanded a sum of Rs. 30,000. The petitioner replied that he had cleared all the accounts and that the sum of Rs. 30,000 was not due from him.
He took the note book from the complainant for the scrutiny of the accounts. The complainant demanded that the amount be paid to him forthwith as he had to make payments in the markets.
Thereupon, the petitioner, was provoked. He handed over the note book to his servant and asked the complainant and his companions to go out of his house. The complainant demanded back the note book from the petitioner who refused to return it and said that he could destroy it. The petitioner directed his servant to turn out the complainant and his companions. Thereupon, the complainant and his companions came out of the house due to fear. The matter was reported to the police but no one heard him as the petitioner was an influential, person. The note book of the complainant was a valuable document as it contained all the accounts and other important matters. The petitioner had obtained the note book from the complainant by cheating on the pretext of seeing it and had misappropriated it. He would destroy it to avoid payment, The complaint is Exh. P. A. The statement of the complainant as required by section 200, Cr. P. C. was recorded by the learned Magistrate on 10-7-1968, when two witnesses, Khuda Bakhsh and Allah Ditta were examined. On 10-8-1968 summons were issued to the petitioner under section 406, P. P. C. He appeared in Court on 30-8-68 and the case was adjourned to 10-9-68, for recording the prosecution evidence but on that date the evidence of the complainant was recorded. He was being cross-examined when the Court rose for the day. On 12-9-68, cross-examination of the complainant continued and after the completion of the evidence of the complainant Muhammad Saeed (P. W. 1), the case was adjourned to 3-10-68, for further prosecution evidence and on that date Khuda Bakhsh (P. W. 2) and Allah Ditta (P. W. 3) were examined. The complainant closed his evidence and the case was adjourned to 17-10-68. For one reason or the other the matter could not be heard by the learned Magistrate till 25th of January 1969, when the learned Magistrate framed a charge against the petitioner under section 406, P. P. C.
3. Thereupon, the petitioner moved this Court for quashing of the proceedings and his learned counsel has contended before me that on the facts alleged by the complainant in his complaint and in his statement no offence under section 406, P. P. C. is made out against the petitioner.
4. Normally this Court does not interfere at an intermediate stage of a criminal proceedings pending in a subordinate Court, unless there is some patent injustice on the face of the record.
Learned counsel of the petitioner has vehemently urged that this is one of those cases in which this Court should interfere at this stage because the facts proved on the record do not disclose any criminal offence and continuance of the proceedings would be an abuse of the process of the Court.
5. I have carefully gone through the complaint (Exh. P. A.), the preliminary statement of the complainant and his witnesses together with the prosecution evidence and have arrived at the conclusion that they do not constitute an offence under section 406, P. P. C. To constitute the offence of criminal breach of trust, there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the 'property' in respect of which the breach of trust is charged. There must be an entrustment, there must be misappropriation or conversion to one's own use or use in violation of any legal direction or of any legal contract and, thirdly, the misappropriation or conversion or disposal must be with a dishonest intention. In criminal misapproprfation the property comes into the possession of the offender by some casualty or otherwise and he afterwards misappropriates it. In the case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriates the same or wilfully suffers any other person to do so instead of discharging the trust attached to it.
6. It is contended by the learned counsel for the contesting respondent that the note book (Exh. D.
1) is 'property' within the meanings of section 405, P. P. C. and as the petitioner has I have endeavoured my best to find on the record even a slight hint to the effect that there was 'entrustment' of Rs. 30,000. Even the petitioner has not alleged anywhere that there was any entrustment of Rs. 30,000 or that there was any conversion or misappropriation of the same by the petitioner. On the contrary, it is clear from the evidence that the respondent had gone to the house of the petitioner to settle accounts. On the respondent's own showing, the petitioner had spent about Rs. 2,75,000, on the construction of the bungalow and out of this amount a sum of about Rs.
1,35,000 was spent on labour and material supplied by the respondent complainant. It appears that it took about ten years to complete the bungalow and during this long span of ten years the respondent continued to receive the payments from the petitioner. The dispute arose between the parties over a sum of Rs. 30,000 only whereas the petitioner asserted that nothing was due from him. The respondent claimed that a sum of Rs. 30,000 was still due to him. Hence I am clear in my mind that the entire claim of the respondent is based on a contractual liability. The best forum for settling such matters is always a civil Court unless there are circumstances which make anyone liable for a criminal prosecution. The general tendency on the part of the people here is to enforce civil liability by way of resort to the criminal prosecution which is not permissible under the law. It is in these cases where the intention of the party is apparent on the face of the record that the party denies to enforce a civil liability by circumvented criminal prosecution, that the High Court will always interfere. I am firmly of the view that where a person is enforcing a liability which is entirely civil in nature by resorting to a criminal case, he is doing something which is not warranted by law and if on the complaint any action has been taken, it is obviously an abuse of process of the Court.
Reference in this respect can be made to A. J. Heywood etc. v. Emperor (1), Zafar Niazi v. Riaz-ud- Din (2) and J. D. Dr't v. Iqbal Qadir etc. (3). It has been held by Supreme (^ahoor (l)AIR 1942 Lah. 134 (2) PLD 195& "gd
(3) PLD 1962 Pesh. 167 . taken him to a dilapidated house where respondent Muhammad Shafiq committed an act of sodomy upon him.
The direct evidence in this case is only that of the child Rahimuddin, corroborated by his father who admits that he is on terms of hostility with the parents of the respondent boys. The F. I. R. was lodged as late as 3-15 p. m. on the next day and no explanation, whatever, has been offered at any stage for this delay nor has it been considered by the learned President.
3. The boy Muhammad Shafiq as well as the victim Rahimuddin were examined by Dr. Muhammed Munir whose certificate is on record and it shows an entire absence of any marks of injury whatever upon the body of the victim as well as absence of any blood or semen stains upon the body or the clothes. In these circumstances the opinion therefore recorded that a fresh act has been committed would not appear to be supported by any medical evidence whatever. The active agent, namely respondent Muhammad Shafiq was examined and upon him no marks of blood or semen were detected. In the course of investigation the trousers of the victim were also secured but apparently nothing was found therefrom. Similarly the urethral slides and swab of Muhammad Shafiq as well as Rahimuddin did not disclose any semen when examined by the Chemical Analyser.
4. I have assumed so far that the evidence of the certificate by Dr. Muhammad Munir was admissible. Dr. Muhammad Munir was not examined at all and Dr. Muhammad Moosa Baloch gave evidence to the effect that Dr. Muhammd Munir had been transferred to Lahore. Nothing thereafter was stated in his evidence to the effect that it was not possible to obtain his evidence. Section 32 of the Evidence Act, does not render admissible any writing made by a person who is not present in the City but only such a person as is dead or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which appears in the circumstances of the case to the Court to be unreasonable and then only on one of the matters referred in the one of the 8 clauses of that section. The mere fact that the witness had been transferred to Lahore was by no means a compliance of the necessary pre-requisites of section 32 and no attempt whatever was made to satisfy the Court on that score. It does not seem that this question was present to the mind of the President at all. The evidence was not therefore admissible but even if it was, it hardly added to the prosecution case.
I cannot consider, therefore, the evidence of the boy Rahimuddin uncorroborated and even contradicted by such medical evidence as existed as sufficient. Upon this state of the evidence I do not think it right to allow the order of the learned President to stand and accordingly set aside the same. The two respondents are on bail; their bail bonds will be cancelled. .