Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Pakistan Penal Code, (XLV of 1860), S. 406--‘investment’ and ‘entrustment’--Quashment of FIR--Criminal breach of trust--Joint business partnership--After five days of execution of partnership deed between parties, petitioner closed his abovementioned hotel and shifted to some other place--Petitioner promised with complainant that he will keep remaining amount of complainant as a ‘trust’ with him and same shall be returned to complainant--The word ‘trust’ in FIR would not attract provisions of Section 406, PPC--There is a difference between ‘investment’ and ‘entrustment’ as envisaged u/S. 405, PPC--No person can be prosecuted and convicted on basis of vague and unspecific allegations--There was a joint business of Hotel of parties and there is a business dispute between them which is purely of civil nature--Petition is allowed and impugned is quashed.
[Pp. 822, 823, 824 & 825] A, B, C, D & E
2000 SCMR 122; 2006 PCr.L.J 1900; 1987 SCMR 795; 2014 P.Cr.L.J 487; 2014 P.Cr.L.J 1305; 2009 Cr.L.J 290; 2009 Cr.L.J 630 ref.
Mian Shahid Amin, Advocate for Petitioner.
Mr. Nisar Ahmad Virk, Deputy Prosecutor General for State.
Mr. Ajmal Mehmood, Advocate for Complainant.
Date of hearing: 19.6.2019.
PLJ 2021 Lahore 821
Present: Malik Shahzad Ahmad Khan, J.
SHAUKAT ALI--Petitioner
versus
STATE etc.--Respondents
W.P. No. 17081-Q of 2019, heard on 19.6.2019.
Judgment
Shaukat Ali, petitioner, seeks quashment of FIR No. 1674 dated 25.09.2018 offence under Section 406, PPC registered at Police Station Green Town, Lahore.
2. Arguments heard. Record perused.
3. As per contents of the FIR, Muhammad Ishtiaq Khan (complainant) alleged that he started a joint business of hotel with Shaukat Ali (petitioner) with the name and style of Masooma Grill Station Hotel. The complainant invested an amount of Rs. 500,000/-in the said business through written partnership deed dated 28.09.2017. It was agreed between the parties in the abovementioned partnership deed that after deduction of expenses, profit shall be distributed equally between the parties. However, Shaukat Ali, petitioner did not pay any amount of profit to the complainant. After five days of the execution of the partnership deed between the parties, the petitioner closed his abovementioned hotel and shifted to some other place. Later on, the complainant contacted the petitioner at his house, who, paid an amount of Rs. 200,000/-to the complainant and promised to pay the remaining amount within a period of one month but despite the lapse of six months, the petitioner did not pay the remaining amount to the complainant. The petitioner promised with the complainant that he (petitioner) will keep the remaining amount of the complainant as a ‘trust’ with him and the complainant may take back the said amount from the petitioner as and when desired by him. Later on, the complainant contacted the petitioner for return of his remaining amount on 27.07.2018 but the petitioner and his co-accused extended threats of life to the complainant. Shakir, co-accused also took out pistol and threatened the complainant that if he will make any demand of money, then, he shall be murdered, hence, the abovementioned FIR.
4. It is evident from the contents of the FIR that the complainant invested an amount of Rs. 500,000/-in the joint business of hotel with the petitioner and in this respect a written partnership deed was also executed between the parties on 28.09.2017. Later on, the hotel of the parties was closed and the petitioner returned an amount of Rs. 200,000/-to the complainant, however, he did not pay the profit of joint business or returned the remaining principal amount to the complainant. It is, therefore, evident that in-fact, it was a case of civil nature regarding recovery of money or rendition of accounts but the complainant has lodged the impugned FIR by merely mentioning a single sentence therein that the petitioner promised with the complainant that he will keep the remaining amount of the complainant as a ‘trust’ with him and the same shall be returned to the complainant as and when desired by him. I have noted that a written partnership deed was executed between the parties on 28.09.2017, which is available on the record. There is nowhere mentioned in the said partnership deed that the amount invested by the complainant shall remain as a ‘trust’ with the petitioner rather perusal of the contents of the said partnership deed reveals that the abovementioned amount of Rs. 500,000/-was invested by the complainant in a joint business of hotel with the petitioner. In the case of “Miraj Khan vs. Gul Ahmad and 03 others” (2000 SCMR 122), the Hon’ble Supreme Court of Pakistan has held that merely mentioning the word ‘trust’ in the FIR would not attract the provisions of
Section 406 PPC when otherwise, ingredients of the said offence are not made out, from the contents of the FIR. Resultantly, FIR in the said case was quashed by the Apex Court. It is by now well settled that there is a difference between the ‘investment’ and ‘entrustment’ as envisaged under Section 405, PPC punishable under Section 406, PPC. This Court in the case of “Shaukat Ali Sagar vs. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others” (2006 PCr.L.J 1900), in a similar situation, quashed the FIR registered under Sections 405, 406, 506, PPC. Paragraph No. 2 at Page No. 1901 of the said judgment is reproduced hereunder for ready reference:
“I have heard the learned counsel for the parties and have gone through the record of this case with their assistance and have straightaway found that the facts alleged in the impugned F.I.R. do not constitute the offences invoked therein. According to the F.I.R. some amount of money was given by the complainant to the petitioner for the purposes of doing business therewith and for giving profit to the complainant therefrom. An offence of criminal breach of trust defined by Section 405, P.P.C. is constituted and the same is punishable under Section 406, P.P.C. if some property is given on trust and the same property is to be returned. In the case in hand it was not the complainant’s case that the same currency notes which had been given by him to the petitioner were to be kept by the petitioner by way of a trust and the same currency notes were to be returned to the complainant. It is a settled proposition by now that if some money is given to somebody for the purpose of investment in some business and an equivalent amount of money along with profits over the same are to be returned to the person giving the money in the first instance then such a business transaction does not attract the provisions of Section 405, P.P.C. read with Section 406, P.P.C. because in such a case the same property is not to be returned but what is to be returned is its equivalent property along with profits. In a case of this nature the matter is not of entrustment of property but is simply one of investment of property”.
Similarly, in the instant case, it is not claimed by the complainant that the currency notes which he had given to the petitioner, were to be kept by the petitioner by way of ‘trust’ and the same currency notes were to be returned to the complainant and as such provisions of Section 405, PPC punishable under Section 406, PPC are not attracted in this case.
5. Although, the police has not leveled offence under Section 506, PPC in this case but the complainant has leveled the allegation that the petitioner and his co-accused extended threats of life to him. No specific time of the threats of life allegedly extended by the petitioner and his co-accused has been mentioned in the FIR and a vague allegation by only mentioning the date in this respect has been leveled therein. A vague allegation has been leveled by the complainant against the petitioner and his co-accused in respect of the alleged threats of life extended by them. It is by now well settled that no person can be prosecuted and convicted on the basis of vague and unspecific allegations. Under the circumstances, in case of submission of challan in this regard the learned trial Court shall not be able to frame a specific charge in that respect against the petitioner and his co-accused. Reliance in this respect is again placed on the judgment reported as “Shaukat Ali Sagar vs. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others ” (2006 PCr.L.J 1900).
6. The petitioner has also placed on the record attested copy of suit for rendition of accounts and permanent injunction which has been filed by him against the complainant on 13.10.2018. An attested copy of suit for recovery of Rs. 300,000/-filed by Muhammad Ishtiaq Khan (complainant) against Shaukat Ali (petitioner) and others has also been placed on the record. The said suit has been filed on 05.11.2018. Both the abovementioned suits are pending adjudication
before the learned Civil Judge, Lahore. It is evident from the perusal of the impugned FIR that there was a joint business of Hotel of the parties and there is a business dispute between them which is purely of civil nature and as such the parties have rightly filed the abovementioned civil suits against each other for the decision of their disputes by the Civil Court. It appears that by lodging the impugned FIR, the complainant has tried to convert the civil/business dispute into criminal case in order to blackmail and pressurize the petitioner and his co-accused and to get concession(s) in the civil litigation. I am, therefore, of the view that the impugned FIR is liable to be quashed as observed in the abovementioned judgments, as well as, in the judgments reported as “Muhammad Ali and another vs. Assistant Commissioner, Narowal and another” (1987 SCMR 795), “Zulfiqar Ali vs. Station House Officer, Police Station Model Town, Gujranwala and 2 others” (2014 P.Cr.L.J 487), “Umair Aslam vs. Station House Officer and 7 others” (2014 P.Cr.L.J 1305), “Zahid Jameel vs. SHO, etc.” (2009 Cr.L.J 290) and “Zahid Jameel vs. SHO, etc.” (2009 Cr.L.J 630).
7. For what has been discussed above, this petition is allowed and impugned FIR No. 1674 dated 25.09.2018, registered at Police Station Green Town, Lahore under Section 406 PPC is hereby quashed. The investigating officer of the said case is directed to make an entry in this regard in the relevant register.
(K.Q.B.) Petition allowed.
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