1990 PLP 1455 (MLD)

‑‑‑S.405‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Criminal breach of trust‑‑ Constitutional jurisdiction‑‑‑Investigation‑‑‑Where possibility could not be ruled out that the respondent after having received the property of appellants from the sureties, had developed dishonest intention to retain the same even after the real accused were detected by the Investigating Officer, in that event, he would prima facie be liable for criminal breach of trust and interference of High Court under Constitutional jurisdiction in the investigation was not called for. Mst. Haleema Bibi v. The State 1988 P Cr. L J 1575 and Syed Fayyaz Hussain Hamdani, Advocate v. The State 1982 P Cr. L J 726 distinguished. Asif Saeed Khan Khosa for Appellants. M. Anwar Sipra for Respondents. Date of hearing: 26th March, 1990. MANZOOR HUSSAIN SIAL, J.‑‑‑This Intra‑Court Appeal arises out of order dated 25‑6‑1980, passed in W. P. No.3264 of 1979 by the learned Single Judge in Chamber, whereby he quashed investigation proceedings initiated pursuant to F.I.R. No.42 of 1979 registered under section 406, P.P.C. on 31‑3 1979 at Police Station, Dijkot, District Faisalabad.

2. The relevant facts, in brief, giving rise to this appeal are that in the middle of 1976, theft of jewellery valuing about Rs. 20,000 was committed at night in the house of Jalla respondent situate in Chak No.249/RB, Tehsil and District Faisalabad. He did not lodge F.I.R. but after lapse of about six months entertained suspicion against appellants, namely, Mst. Sughran Bibi and Mst. Sahban Bibi unmarried daughters of Noor Muhammad and Salhoon respectively, to have committed theft of his jewellery. The appellants and their families volunteered two sureties, namely, Nazir son of Mohabbat and Saleh son of Taja and deposited with them 33 tolas of gold and six buffaloes with an undertaking that if the allegation of theft is proved against them, the sureties would pay Jalla respondent Rs. 20,000 on their behalf. One Amir Khan was nominated to act as Arbitrator to settle the dispute. The latter held the appellants guilty and on 10‑4 1977 directed the sureties to hand over 33 tolas of gold and six buffaloes to Jalla respondent. The appellants made attempts to challenge the verdict of the Arbitrator in the Civil Court but of no avail. It appears that after lapse of two years from the date of occurrence Jalla respondent on 16‑10‑1978 lodged F.I.R. No.192 of 1978 under section 457/380/411, P.P.C. at Police Station, Dijkot, District Faisalabad, wherein he entertained suspicion about the commission of offence by the appellants. In the course of investigation, however, Rabnawaz A.S.I. the Investigating Officer traced out the actual thieves, namely, Muhammad son of Said, Taj son of Daulu and Pehlwan alias Palloo son of Taju, recovered part of the stolen jewellery, arrested and challaned them. The Investigating Officer found the appellants innocent. He found that the complainant dishonestly wanted to retain the jewellery and buffaloes, received by him from the sureties being of far more value than the stolen property and recommended registration of case against him. The Senior Superintendent of Police, Faisalabad gave approval and case under section 406, P.P.C. was registered against him at Police Station Dijkot. During the pendency of the investigation of the aforesaid case, Jalla respondent filed W.P. No.3264 of 1979 for quashment of the proceedings. The learned Single Judge vide impugned order quashed the proceedings on the ground that 33 tolas of gold and six buffaloes, were given to him in arbitration proceedings and therefore, he committed no offence.

3. Learned counsel for appellants contended that the learned Single Judge quashed the criminal case when it was only at the early investigation stage and thereby stifled the proceedings not warranted under the law. It was also contended that the respondent was delivered the gold and buffaloes subject to appellants' having been finally found guilty, the appellants having been found innocent, but the respondent was required to deliver the jewellery and buffaloes owned by the appellants and held in trust by him. It was also contended that during the investigation the actual thieves, having been traced out, the non‑joining of respondent, in the investigation, reflected his intention to retain the appellants' property dishonestly. It was also contended that assuming that the respondent received appellants' property pursuant to verdict of the Arbitrator, his subsequent non‑delivery to the appellants when the real accused were traced out depicted his dishonest intention and this aspect of the case required investigation. It was next argued that the parties agreement to refer to arbitration in consideration of dropping criminal proceedings relating to non‑compoundable offence was opposed to public policy and illegal and award being outcome of illegal reference was also invalid. It was also contended that this Court cannot interfere in investigation unless it is launched mala fide or is beyond the jurisdiction of the investigating authority. It was lastly contended that the prosecution case was quashed without impleading or hearing any one on behalf of the State. In support of his contentions he relied on Muhammad Javed Ahmed v. Muhammad Ali and others (1987 SCMR 1750), Abdul Rashid and others v. The State (1977 P Cr. L J 91), Kamini Kumar Basu and others v. Birendra Nath Basu and another (A I R 1930 P C 100), Mt. Bakhtawar v. Isardas Rijhumal (AIR 1934 Sindh 71), Gopal Chandra Poodar v. Lakshmi Kanta Saha (A I R 1933 Cal. 817), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971SC677).

4. Learned counsel for the respondents controverted the submissions made by learned counsel for the appellants. 1t was contended that 33 tolas of gold and six buffaloes were delivered to the respondent pursuant to verdict given by the Arbitrator, therefore, no question of breach of trust arose in the matter. It was also submitted that the learned Single Judge was competent to quash investigation proceedings, in writ jurisdiction if found mala fide or without jurisdiction. In support of his contention he relied on Mst. Haleema Bibi v. The State 1988 P Cr. L J 1575, Syed Fayyaz Hussain Hamdani, Advocate v. The State 1982 P Cr.LJ 726 and Muhammad lnamullah Khan v. The State P L D 1977 Lah. 1279). It was also contended that the material on the record established that no offence under section 406, P.P.C. was committed by the respondent, the learned Single Judge, therefore, rightly quashed the proceedings.

5. We have heard learned counsel for the parties at some length and have also heard Jalla respondent. He admitted before us that he lodged F.I.R. regarding theft of his jewellery long after the arbitrator had given verdict in his favour. The F.I.R. lodged by him clearly shows that he entertained mere suspicion against appellants having committed theft of his jewellery. During the investigation the appellants were found innocent, other accused were traced out, they were arrested and some part of the jewellery was recovered from them. The respondent did not join investigation, rather appears to have preferred to retain jewellery and buffaloes delivered to him by the sureties. The question whether he retained the gold and buffaloes with or without honest intention, can only be gathered from the conduct of the respondent and the attending circumstances. It was therefore, necessary to determine this question through investigation. If he refused to deliver the appellants' property, after they were declared innocent and other accused were detected, it may amount to prima facie commission of criminal breach of trust under section 405, P.P.C. The quashment the proceedings titled this aspect of the investigation altogether. The agreement to refer the matter to the arbitrator, regarding commission of theft, a non‑compoundable offence by the appellants and the decision of the arbitrator in that behalf having been opposed to public policy were illegal. There was no allegation that the investigation initiated against the respondent was mala fide or that the 1 investigation was beyond the competence or jurisdiction of the Investigating Officer. In our opinion, therefore, no interference in writ jurisdiction was called for in the matter. The precedents cited by learned counsel for the respondent are distinguishable. In cases namely, Mst. Haleema Bibi v. The State 1988 P.Cr. L J 1575 and Muhammad Inamullah Khan v. The State P L D 1977 Lah. 1279, it was held that this Court has the jurisdiction to interfere if, the investigating authority acts mala fide or without jurisdiction. Similarly in Syed Fayyaz Hussain Hamdani, Advocate v. The State 1982 P Cr. L J 726 the F.I.R. was quashed mainly because it was lodged on erroneous assumption of facts, but in the instant case the possibility cannot be ruled out that the respondent after having received the property of appellants from the sureties bona fide, had developed dishonest intention to retain the same even after the real accused were detected by the Investigating Officer. In that event, he would prima facie be liable for criminal breach of trust.

6. Without expressing any opinion on the merits of the case, which may prejudice the case of either party, we are inclined to hold that there was no justification to interfere in the investigation proceedings in writ jurisdiction at that stage. Resultantly, we set aside the impugned order, passed by the learned Single Judge and accept this appeal with no order as to costs. M.BA/S‑695/L Appeal accepted.