' Mian Bakhsh Ellahi etc. Petitioners are facing trial in the Court.
2. The petitioners/accused moved an application under section 249-A, Cr.P.C. In the Court of the Magistrate which was rejected on 11-2-1989. The order has been assailed in the present petition under section 561-A, Cr.P.C. It is prayed that the proceedings pending in the Court of the Magistrate be quashed.
3. According to the version given in the F.I.R. Mst. Jannat Bibi, the mother, Rafaqat Ali respondent alongwith Mst. Safia and Mst. Baby Tabassum, petitioners had set up Gulshan Textile Mills. There arose disputes between them and civil suits were filed. Order was passed therein that the Factory/Mills machinery be not shifted nor sold. This order was violated on 2-2-1988. Muhammad Sadiq and Muhammad Iqbal, P.Ws. While passing on the road saw the violation inasmuch as Bakhsh Ellahi etc. Petitioners were carrying away the machinery on camel carts and donkey carts.
The two witnesses informed the complainant about it. He approached the petitioners for the return of the machinery etc., they had finally refused.
4. Learned counsel have been heard and record gone through with their help. It is an admitted fact that Mst. Safia and Mst. Baby Tabassam filed a civil suit against the complainant and Mst. Zainab Begum on 15-6-1985 for the rendition of accounts with respect to the disputed Mills/Factory. Vide Annexure 'F' a Referee was appointed by the parties. The Referee made his report Annexure `G'. It is in the report that Gulshan Textile Processing Industries and New Guishan Textile Processing Industries are one and the same thing. Price thereof was settled and the factory obtained by Mian Bakhsh Ellahi. Some money was also to be paid as adjustment between the parties. From Annexure 'G' it appears that the possession of the factory had also been delivered to Mian Bakhsh Ellahi etc. Rafaqat Ali in his application in the suit (Annexure M) admitted in para. 4 that the Referee had colluded with Mst. Safia Begum etc. And had delivered the key of the factory to the plaintiffs who had entered in its possession. Rafaqat Ali had filed Writ Petition No,1427 of 1988 against the petitioners herein and the S.H.O., Police Station Batala Colony for registration of a case. In this writ petition as well there is clearly stated in paras. 1, 3, 4, 7, 9, 10 and 14 that Mr. Riazul Haq was appointed a Referee who visited the factory and on 12-3-1987 possession of the factory alongwith the goods lying therein were entrusted to Mian Bakhsh Ellahi, a document was executed in this behalf, the machinery etc. Was removed on 2-2-1988 by the present petitioner party who sold the same for Rs,1,00,000 and a receipt was also executed therefor. Civil Judge had appointed a Commissioner to visit the spot and make a report. The Civil Judge was moved for the contempt of Court for violation of some order. It had been learnt that the present petitioners had sold away the cotton calender and electric motor without any permission from the Civil Court. Thus, according to version in the writ petition, the present petitioners had committed cognizable offence.
5. A recital of all the facts would indicate as correctly contended by the learned counsel for the petitioners that no offence can be said to be made out. It is purely a civil dispute between the parties which is already under adjudication in Court. Learned counsel has also correctly contended that the two offences i,e. Under sections 380 and 406, P.P.C. Are mutually destructive. If there was entrustment of the property of the Mills/Factory, then there could not have been any offence of theft under section 380, P.P.C. And if there was theft then there could not have been any entrustment.
6. The other merits of the case need not be discussed as the civil matter is pending between the parties. Suffice it to say that the matter being purely of civil nature, the resort to criminal jurisdiction was a clear misuse of the process of Court. No offence prima fade can be said to be made out upon the bare reading of the F.I.R.
7. The petition is, therefore, accepted and the proceedings are hereby quashed.