Muhammad Yaqoob son of Muhammad Riaz through the instant writ petition has called-in- question validity of F.I.R. Bearing No,212 of 1999 registered with Police Station Satellite Town, Gujranwala on 10-3-1999 against him and his brother namely Nisar Ahmed at the instance of respondent No, 3, Rashid Ikram under section 408, P.P.C.
2. Briefly the allegations contained in the First Information Report authored by Rashid Ikram are that he owns a factory namely "Shahid Brothers at Gujranwala where he manufactures motors for washing machines and has appointed Nisar Ahmed and Muhammad Yaqoob sons of Muhammad Riaz as salesmen, their job being to get the motors from his factory and to sell it in the market. It is contended that when he checked his account book he found that a sum of Rs,4-1/2 lacs was due from both the brothers viz. Nisar Ahmed and M. Yaqoob, thereupon he asked both of them to return the amount of the motors given to them for sale which they promised to do but later on learnt that they have sold their house and have run away somewhere. In the end of the complaint it was stated that both the brothers have embezzled the amount fetched by them by the sale of motors and have thus, committed an offence under section 408, P.P.C.
3. Learned counsel appearing for the petitioner contended that bare reading of the F.I.R. Does not disclose any offence, rather the matter, if any, is of civil nature and in order to subvert the machinery of law, criminal proceedings have been resorted to. It was submitted that at the most it was a case of rendition of accounts for which, if the complainant felt that he had any grievance, he could have resorted to a civil suit. Conversely, learned counsel appearing for respondent No,3, complainant has vehemently urged that reading of the First Information Report indicates that the complainant appointed the petitioner and his brother Nisar as his salesmen whose job was to receive the motors of the washing machines, prepared at the factory of the complainant and to sell the same in the market, where after, they had to pay the amount to the complainant/owner after deducting their commission. In this manner, it was reiterated that the motors was a trust property with the accused till such time as they sold the same in the market and after deducting their commission returned the profit to the owner. By not abiding with the legal contract, the petitioner and his brother have made themselves liable for the commission of an offence under section 408, P.P.C.
4. I have carefully attended to the arguments of the learned counsel appearing for both the parties and have gone through the record. Section 405, P.P.C. Defines criminal breach of trust and is reproduced for facility of ready reference:-- "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly , misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust' ." From the bare reading of the definition of the Criminal Breach of Trust, following ingredients are essential to constitute an offence:--
(a) There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted.
(b) The person in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted.
(c) Dishonestly - uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged.
(d) Dishonestly uses or disposes of that property in violation of any legal contract, express or implied which he has made touching the discharge of such trust.
5. The petitioner has invoked the Constitutional jurisdiction of this Court for quashing the F.I.R.
Referred to above. He could only be successful if he shows that even if the allegations made in the F.I.R. By the complainant are admitted to be correct, still no Court can convict him on the basis of such allegations and the trial would be an exercise in futility thwarting the process of law. Only in the eventuality referred to above, this Court may take into consideration that proceedings would be a sheer abuse of process of the Court because even if the allegations are admitted, no criminal case is made out, and to save the accused from the rigours and pangs of lengthy trial, F.I.R. Is quashed. To the contrary if the allegations by its plain reading make out a case, however, weak it be, it has been the consistent practice of this Court to allow the trial to proceed-in its normal course and quashing it at its initial stage amounts to stifling of the prosecution.
6. Adverting to the facts of the present case, the reading of the F.I.R. Takes us to the conclusion that the complainant is a manufacturer of motors used in washing machines and he appointed the petitioner and his brother as his salesmen with whom a legal contract was entered into that they would sell the motors in the market and after retaining their commission they would return the profit to the owner/complainant. The property i,e, motors, supposed to be used for washing machines, was a trust property and by delivering it to the petitioner and his brother, a fiduciary relationship came into existence between the complainant and accused. The violation of the contract, referred to above by the petitioner, according to the allegations, constituted the dishonest intention on the part of the petitioner hence, prima facie a case of criminal breach of trust was made out.
7. The analogy applicable to the quashing of F.I.Rs in its inception is the same as is applicable to the plaint where an application is made under Order VII, Rule 11, C.P.C. For rejecting it. There, the Court has only to see the contents of the plaint and cannot go out of it to reach to the conclusion whether it should or should not be rejected. Similarly, quashing of F.I.R. In its inception only requires the examination of its contents. If a case is made out, the trial should ordinarily be allowed to proceed but on the other hand, even if contents of the F.I.R. Are admitted and conviction is not likely to ensue then the proceedings are termed as abuse of process of law and Courts would step in to stem this abuse.
8. Learned counsel has not convinced me that the contents of the F.I.R. Do not constitute an offence, therefore, I do not feel that it is a case D where extraordinary relief should be allowed to the petitioner. Writ petition being meritless is dismissed and the police is directed to forthwith submit the challan in the Court, where after, the trial Court who is seized of the trial shall expeditiously conclude the trial.