BADAR UR ISLAM vs DISTRICT POLICE OFFICER, FAISALABAD and 3 others

' M. A. SHAHID SIDDIQUI, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Badar-ul-Islam petitioner has prayed for quashing F.I.R. No.260 dated 19- 5-2004 registered at Police Station, Batala Colony, Faisalabad under section 406, P.P.C. The FIR. Is based on a written complaint made by Monam Azam. Bhatti, &property-dealer of Faisalabad.

2. As per FIR., the petitioner and his brothers had agreed to sell a portion of their house bearing Property No,128-C, situated in Peoples Colony, Faisalabad to one Nadeem Sheikh for a total consideration of Rs.72,93,000 out of which a sum of Rs.1,00,000 was paid to the seller on 15-3-2003..

As per agreement the purchaser was required to pay Rs.14,00,000 to the seller on 31-3-2003 for obtaining the possession of the property and the remaining amount .Of Rs.57,93,000 was to be paid by or before 15-8-2003 at the time of the registration of the sale-deed. The allegation against the sellers is that they did not receive the remaining sale price and avoided to perform their part of the agreement on different pretexts nor did they return the earnest money which they had received.

3. The execution of the agreement has not been denied by the. Petitioner. He pleaded that the complainant, who is a property dealer, had in fact paid only a sum of Rs.60,000 as earnest money and had misappropriated a sum of Rs.40,000.

4. Learned counsel for the petitioner argued that the facts stated in the F.I.R. Simply disclosed that the sellers had refused to perform their part of agreement, as such, it is a case of simply breach of agreement which cannot be allowed to be converted into a criminal case. The purchasers had a right to bring an action for specific performance of agreement and that the registration of criminal case amounts to abuse of process of law. Learned counsel for the petitioner further contended that even if it is assumed that the petitioner had received Rs.1,00,000 from the purchasers it cannot be said that the said amount was entrusted to him as contemplated under section 406, P.P.C.

5. Learned counsel for the complainant vehemently opposed this petition. He denied the allegation that the complainant had only paid a sum of Rs.60,000 out of the earnest moiiey and had misappropriated a sum of Rs.40,000 out of it. He submitted that the amount received by the accused as earnest money had been claimed by the purchasers from the complainant, as such, the refusal of the accused to refund the earnest money amounts to criminal breach of trust. .Lastly, he argued that the prosecution has submitted the challan in the competent Court of law, therefore, this petition is not maintained.

6. I have heard the learned counsel' for the parties at length. Admittedly, the purchaser himself has neither initiated any action against the complainant nor against the accused. The complainant's position is that of a property dealer who simply had brought the parties in contact to negotiate a deal. He has no personal interest in the transaction. Despite this, his grievance is only this much that the petitioner besides committing breach of agreement had not returned the earnest money to the purchaser. A perusal of the police record shows that the purchaser was never associated with the investigation of case. The record does not reflect any grievance of the purchaser. The complainant appears to have got the case registered with an ulterior motive. Even otherwise, the payment of Rs.1,00,000 to the petitioner was made as part payment of the sale price. It cannot be termed as entrustment within the meaning of section 406, P.P.C. The allegation levelled by the complainant can be described only-and-only as a breach of contract for which the purchaser alone may approach the civil Court. Breach of contract cannot be allowed to be made basis for criminal prosecution.

7. As regards the question touching the maintainability of this petition solely on the ground that the prosecution has submitted the 'challan in the competent Court of law. , I am of the view that the case is purely of civil nature, therefore, the registration of criminal case was illegal and the continuance of criminal proceedings would also be unwarranted and would amount to abuse of process of law and that this Court in the exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and also under section 561-A, Cr.P.C, has ample C powers to quash the F.I.R. As well as the proceedings pending in the Court of Ilaqa Magistrate irrespective of, its stage. Reference may be made to the law laid down by the apex Court in the cases report as 1994 SCM R 798 and 2002 SCM R 1076,.

8. In the light of the above discussion, I accept this petition and quash the F.I.R. As well as the proceedings before the learned trial Court.

F.I.R. Quashed