AKBAR ALI vs JULIAN H. DINSHAW AND 2 Other

1. SALAHUDDIN AHMED, J.-This petition for special leave to appeal is from the order of a learned Single Judge of the High Court of Sind and Baluchistan, quashing criminal proceedings under sections 406, 465 and 468/34 of the Pakistan Penal Code, instituted by the petitioner against the respondents. The subject --matter of the criminal proceedings was certain property belonging to a partnership firm of which the respondents and the petitioner's parents were the partners.

2. In October 1966, a complaint was filed by the father of the petitioner against the respondent under sections 421, 422, 424 and 406/34, P. P. C. On the allegations that the respondents had, during the pendency of the arbitration proceedings in regard to the settlement of the partnership accounts, removed and sold some property of the partnership without the knowledge or permission of the father of the petitioner at a false price and thus deprived the petitioner and his father of their rightful share in the property. Furthermore, that the sale proceeds had been misappropriated by the respondents. 'The said criminal proceedings ultimately came up before the Supreme Court and they were quashed by an order dated 15-1-1971, in the following manner: "The learned counsel for the respondent has frankly conceded that no case was made out against the appellants from the complaint or from the preliminary evidence for offences under section 421/424, P. P. C., for which processes were issued against them. However, he submitted that evidence could be led at the trial to prove a case against the appellants for misappropriation of the partnership properties under sec--tion 406/408, P. P. C. The admission of the learned counsel for the respondent further points out to the utter futility and lack of justification for action against the appellants under section 421/424, P. P. C. We consider that on the facts as brought out in the complaint and during the preliminary inquiry, no offence was disclosed against the appellants, and no processes should, therefore, have issued against them. The dispute is revealed to be one of a civil nature, and should not have been allowed to drag on in the criminal Courts to the harassment of the appellants.

3. In the result, we accept this appeal and quash the proceedings against the appellants, which are pending against them on the present complaint."

4. The allegations in the present criminal proceedings are more or less of a similar nature.

5. It has been found by the High Court that the trawler which is the subject-matter of the subsequent criminal proceedings by the petitioner had become the property of the partnership firm and it was sold by the petitioners (i.e. The partners) in December 1964, and that the trawler was not available to the partners or the arbitrator for disposal at the time the agreement was arrived at by the parties at the instance of the arbitrator. The sale of the trawler was shown in the account books of the firm for the period ending 31-12-1965 which were soon after handed over to the petitioner.

6. The High Court has rightly observed that the mere allegation that the trawler was sold at a false price does not show that it was not sold at the price shown in the accounts books.

7. In our opinion the High Court has carefully considered all aspects of the case to come to the conclusion that the dispute between the parties is of a civil nature and the Court was well within its jurisdiction to do so.

8. It has been contended that the High Court took into consideration certain new matters placed before it for the first time and this has vitiated its order. The petitioner had been given opportunity to controvert these matters. There is therefore no substance in this contention.

9. We are unable to find any fault with the impugned order of tile High Court. The petition is, accordingly, dismissed.