2006 PLP 2813 (YLR)

M. BILAL KHAN, J.

Through this constitutional petition, Asad R. Sheikh son of Muhammad Younas . Sheikh, the petitioner seeks quashing of F.1.R. No. 153, dated 27-2-2006, registered against him at Police Station Gulberg, Lahore for an offence under section 409, P.P.C. at the instance of Nasir Mehmood son of Ch. Fazal Mahmood, Manager (Admn.) Ghazi Fabrics International Limited, 8/C-EIII, Gulberg-III, Lahore.

2. Precisely the allegation against the petitioner, according to the F.I.R., was that he had been working as agent/broker of the complainant-company for about three years and during this period he had caused loss of Rs.8, 00, 00,000 to it by committing criminal breach of trust regarding a shipment to Messrs Lorber Industries California, USA despite having the knowledge of bankruptcy of the latter company.

3. In support of this petition for quashing the F.I.R., it has been argued that the petitioner runs a brokerage and carries international repute in the said field; that on account of the professional expertise displayed by the petitioner, the complainant/company had been earning huge profits; that the petitioner had only facilitated the business deal between the complainant and the consignee as a result whereof the goods had been shipped by the complainant in the name of the consignee; that the consignee had filed application for bankruptcy after the goods had reached at the port and, therefore, the petitioner had no knowledge about the filing of the bankruptcy proceedings by the consignee; that the consignee had been making payments to the complainant till 27-1-2006, which negated the allegation in the F.I.R. that the former had become insolvent on 28-12-2005; that the F.I.R. had been lodged by the complainant in order to harass and intimidate the petitioner and to recover the loss, which he had suffered by making the petitioner a scapegoat; that the F.I.R. had been got recorded with mala fide intention; that no offence under section 409, P.P.C. is spelt out from the allegations as contained in the F.I.R. He finally argued that the dispute, if any, between the parties was of a civil nature and an attempt had been made to convert a purely civil transaction into a criminal liability.

4. On the other hand, Syed Ehtesham Qadir Shah, the learned counsel, who had appeared on behalf of respondent No.1 /complainant in response to a pre-admission notice, argued that in his capacity as a broker, the petitioner was fully responsible for the loss caused to the complainant; that dishonest, deceitful and fraudulent conduct exhibited by the petitioner is discernible from the record itself; that in a thorough investigation conducted by the Investigation Agency, the petitioner had been found to be guilty and accordingly report under section 173, Cr.P.C. has already been filed before the trial Court; that liability of the petitioner, who happens to be a broker, cannot be decided in constitutional jurisdiction. He finally argued that this Court is always reluctant to enter into disputed questions of facts while seized of a constitutional petition.

5. The learned Law Officer fully supported the contentions raised on behalf of respondent No.1 and submitted that since cllallan has already been submitted before the trial Court, therefore, this petition is not maintainable.

6. After hearing the learned counsel for the parties and going through the record brought by Arshad Hayat, Inspector, it has straightaway been observed that the petitioner has specifically been nominated in the F.I.R. and stands saddled with definite allegations. If the F.I.R. is taken at its face value, the same prima facie discloses commission of cognizable offences. In order to appreciate the contention of the learned counsel for the petitioner, a factual inquiry needs to be undertaken, which, I am afraid, cannot be embarked upon by this Court in the present summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It would be profitable to refer to a recent pronouncement of the Honourable Supreme Court of Pakistan in the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), where it was held that High Court has no jurisdiction to resolve disputed questions of fact in constitutional jurisdiction. It was further observed by their lordships that if prima facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512), the Honourable apex Court held that disputed questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. As already stated elsewhere, the challan has already been submitted before the trial Court, therefore, any interference by this Court at this stage in its constitutional jurisdiction would amount to pre-empting the functions of the trial Court, which is neither appropriate nor desirable.

7. For what has been observed above, no occasion has been found by this Court for interference in the matter at this stage. There being no merit in this petition, the same is dismissed in limine. H.B.T./A-141/L?????????? Petition dismissed.