1977 P Cr (PLP)

Muhammad Ali Shaikh for Applicants. Jalaluddin Baloch for the State. Shakir Ali (absent) for Respondent No. 2 Date of hearing : 21st July 1976. This judgment will dispose of Crl. Misc. Applications Nos. 854 to 857 of 1975. Crl. Misc. Application No. 854 of 1975 has been filed by Ismail who is the owner of a Jewellery shop whereas rest of the applications have been filed by Abdur Razzaq, a servant of Ismail.

2. The brief facts of the case are that the complaints were filed under section 420/406, P. P. C. against Ismail and his servant Abdur Razzak of which complaint, which is subject‑matter of Application No. 854 of 1975 was filed against Ismail and rest of the complaints were filed against his said servant. The allegation in all these complaints is that the applicants who were jewellers by profession also dealt in extending loans on interest on jewellery being pledged with them. The second respondent in these applications had allegedly pledged with the applicants some jewellery and bad borrowed some money. According to them they paid back the principal amount as well as the amount of interest and also handed over the contract form, which had been signed by them at the time of pledging the jewellery but the jewellery was not returned to them by the applicant. They therefore reported the matter to the Police. Consequently a case, under section 420/406, P. P. C. was registered against the applicants.

3. The learned counsel for the applicants argued that if the applicants had any liability towards the second respondent in the said business, it was of a civil nature. According to him the same was covered by sec tion 172/173 of the Contract Act, which deals with bailments and pledges. According to section 173 of the Contract Act a pawnee could retain the goods pledged not only for the payment of the debt but also for the interest accrued on that. I am in full agreement with him because in this case there is no element of cheating or entrustment and therefore a case under section 420/406, P. P. C. could not be made out. The transaction between the parties was of a civil nature and the second respondent in this case could initiate civil proceedings, against the applicants to enforce the contractual liability. It may be mentioned here that a formal contract was entered into between the parties at the time of pledging the goods. In Roy Guianard v. The State and others (P L D 1963 Kar. 868) it has been held that if the criminal cases are based on contractual liability the Civil Court was the only proper forum for the settlement of the cases and that for the enforcement of the civil liability by circumvented criminal prosecution amounted to abuse of process of Court.

4. The learned counsel fore the State has argued that the second respondent in these applications has been cheated by the applicants. He has further argued that it was a case of entrustment of jewellery with the applicants. I am unable to agree with this contention because neither there was any element of cheating in the case nor that of entrustment because it was a simple transaction of pawning the goods for borrowing money and in case there is any dispute between the parties in respect of the said pledge the only remedy for the enforcement of the contractual liability is by way of institution of a suit in the civil Court.

5. For the foregoing reasons I allow these applications and quash the proceedings pending against the applicants in the Court of learned XII Additional City Magistrate, Karachi. Proceedings quashed.