This is an application for quashing the proceedings pending in the Court of the A. C. M. XXVI against the two petitioners by reason of a complaint filed against them by respondent No. 1 under section 406 read with section 34 of the Pakistan Penal Code.
2. The facts mentioned in the complaint are that applicant Haji Muhammad Usman entered into a partnership with the complainant as a result of which the complainant was to advance money which would then be utilised by applicant for the purpose of building on lands belonging to private parties on the basis that they would then share the profit. The first of such ventures was the construction work of one Abdul Aziz and, although we are not told how much the complainant advanced originally, the dbmplaint itself states that at the end of that job a sum of Rs. 95,250 was returned to him and the balance of Rs. 30,000 was retained for the purposes of the second venture which was the construction of the building of one Abdullah. Thereafter it would seem that a short job was undertaken which was a building upon the land belonging to petitioner No. 2, Mst. Fatima Bibi and for this a sum of Rs. 4,000 presumably over and above what remained from previous ventures, was paid by the complainant who was approached by petitioners Nos. 1 and 2 in that behalf. Subsequently a second sum of Rs. 10,000 was also paid. Upon this basis the complainant claims that a sum of Rs. 44,000 in all remains outstanding and of these Rs. 44,000 also the complaint recites the fact that Rs. 16,000 have been subsequently paid and a balance of Rs. 28,000 still remains. Prior to this complaint a plaint had also been instituted for the very same amounts and upon the same allegations and it does appear that, the suit being held up on the objection being taken that ad valorem court-fees had to be paid, the complainant in this case decided to institute criminal proceedings.
I am unable to see how the complaint makes out a case under section 406 at all. It is true that paragraph 2 of the complaint sets that accused No. 1 had told the complainant that the moneys would be kept in trust and also that paragraph 5 alleges that the money has been converted to the use of the accused persons. In the context, however, of the facts alleged in the complaint it is clear that the purpose for which the money was taken was the construction of several buildings and it is also clear that money has been utilised on construction thereof. In the result it would seem that the money now claimed to have been misappropriated is the sum which the complainant spent or is still unutilized. In the circumstances I do not consider that the complaint mentioned any allegation which would constitute a criminal offence upon which process could properly have been issued.
3. Learned counsel for respondent No. 1, that is the complainant, has referred me to the order of the learned Single Judge of this Court who refused to confirm an ad interim stay which he had previously granted upon the ground that unless some more evidence was recorded the application for stay was premature. Beyond this argument, learned counsel expressly stated that, he had nothing whatever to urge in support of his case.
4. Learned counsel for the State urged that since the complaint itself used the expression "will be kept in trust" and also does allege a conversion to the use of the accused a case of breach of trust is made out and that it will be, therefore, premature to quash these proceedings. He also relied upon the order of the learned Single Judge to which I have already referred.
5. In my view the argument is not tenable since the complaint must be read as a whole and, so reading it, it is clear that the complainant is really complaining of a failure on the part of the accused persons to render accounts. This view is strengthened by the fact that even prior to this complaint a suit had already been filed. In a somewhat similar matter in which one partner complained of non-rendition of accounts* 4heii Lordships of the Supreme Court disagreeing with the view of the High Court, held that the dispute was revealed to be one of civil nature and ought not to be allowed to drag on in the criminal Courts to the harassment of the appellants" (Cr. A. No. K-17/69) Julian Dinshaw and another v. Ahmad Ali and another. The present case, I think, is even stronger as upon the face of the complaint itself a clear allegation in regard to the conversion has not been made. In these circumstances I think that to permit this case to proceed would be a clear abuse of the process of the Court and I accordingly quash the proceedings. .