1994 PLP 1694 (MLD)

Mian Muhammad Saeed for Petitioners. Syed Najim Ali Shah for the State. Date of hearing: 2nd May, 1994. ? Muhammad Sharif and Elahi Bakhsh sons of Maula Bakhsh by way of this criminal revision have assailed the impugned judgment dated 7-6-1992 passed by the learned Additional Sessions Judge, Bahawalnagar, whereby the petitioners were convicted under section 406, P.P.C. to undergo 6 months' ILL each and a fine of Rs.1,000 each, and under section 420, P.P.C. to undergo 6 months' R.I. each and a fine of Rs.1,000 each. In default of payment of fine they were directed to suffer two months R.I. each on each count.

2. The brief facts of the case as unfolded in F.I.R. No.177 of 1990 Ex.P.A recorded on 29-8-1990 on the complaint of P.W.1 Syed Ahmad Sabir by S.H.O. Rana Tahir Mansoor (P.W.7) are to the effect that the complainant had moved an application to the Deputy Commissioner, Bahawalnagar against the petitioners for settlement of the amount of Rs.60,000 which the petitioners were alleged to have received for filing a suit for pre-emption on the promise that after the success of the suit the petitioners would give half of the land to the complainant. The petitioners succeeded in their suit for pre-emption, but neither they returned the amount nor had given the land as promised. The application was sent to a District Attorney, who vide his report dated 25-6-1990 had recommended legal action under sections 406 and 420, P.P.C. and registration of a case against the petitioners. The Deputy Commissioner sent the application alongwith the recommendation for registration of a case to S.P., Bahawalnagar. The petitioners were challaned and sent up for trial. A charge under section 406/420, P.P.C. was framed against the petitioners, to which they denied and claimed trial.

3. The prosecution examined 7 P.Ws. in all to substantiate its case. P.W.1 Syed Ahmad Sabir stated that the petitioners had obtained from him Rs.60,000 for filing the suit for pre-emption with a promise to give him half of the land in case of their success. The petitioners also alleged to have executed a pronote of Rs.60,

000. P.W.2 Muhammad Bakhsh, P.W.3 Nazar Muhammad, P.W.5 Sardar Muhammad and P.W.6 Muhammad Yar supported the statement of the complainant P.W.1 and stated that the petitioners had executed a pronote. According to them the complainant demanded return of amount of Rs.60,000 through Punchayat, which was refused by the petitioners. P.W.4 Mahboob Raza Shah, A.S.I. partly investigated the case. Thereafter, P.W.7 Rana Tahir Mansoor, Inspector investigated the case and challaned the petitioners.

4. The petitioners when examined under section 342, Cr.P.C. denied the prosecution evidence against them and stated that a civil suit was pending between the parties wherein the dispute was about the payment of the amount of Rs.60,

000. Neither the petitioners had to pay any amount to the complainant nor they had received any such amount. They further stated that due to a party faction and enmity they were falsely involved. The petitioners also made statement on oath under section 340(2), Cr.P.C. and stated that they were falsely involved and they had not received any disputed amount from the complainant and a case about the same amount and and is pending in the Civil Court. Muhammad Sharif petitioner produced Exh.DA copy of suit in defence and thereafter the petitioners closed their defence,

5. The learned trial Court vide its impugned judgment dated 20-10-1991 convicted and sentenced the petitioners under section 406/402, P.P.C. to undergo 6 months' R.I. on each count and fine of Rs.1,000 on each count, in the default whereof to suffer 2 months' R.I. further each under two 1 heads each.

6. The petitioners filed appeal against their conviction and sentence, which was dismissed vide the impugned judgment.

7. I have heard the learned counsel for the accused/petitioners as well as the learned State Counsel and have perused the record. A careful perusal of the provisions of law reveals that an accused person cannot be prosecuted and punished simultaneously under sections 406 and 420, P.P.C. for the reasons that in case of criminal breach of trust/criminal misappropriation, the aggrieved person voluntarily delivers the property to the accused whereas in case of cheating, he is deceitfully induced by the accused to part with the property. The aforesaid situation cannot reconcile. In case of cheating the accused is supposed to be dishonest from the very beginning, and in case of criminal breach of trust the accused is supposed to become dishonest subsequent to the entrustment of property to him. It, therefore, becomes abundantly clear that commencement, location and distinction of mens rea for offence of cheating punishable under section 420 and criminal misappropriation punishable under section 406, P.P.C. are entirely different. The complainant P.W.1 moved an application to the Deputy Commissioner, Bahawalnagar against the petitioners for the settlement of Rs.60,000, wherein he had not alleged that the petitioners had executed any pronote in his favour, The F.LR. Exh.PA also does not contain that the petitioners had executed pronote in favour of the complainant. P.W.1 had not mentioned the date when he paid Rs.60,000 to' the petitioners. In the F.I.R. the date and time of occurrence is given as 1983, whereas P.W.1 had moved application to the Deputy Commissioner on 2-1-1990 and the case was registered on 29-8-1990. The pre-emption suit was decreed in favour of the petitioners on 9-4-1983. The said suit was for the amount of Rs.9,

000. The complainant moved application to the Deputy Commissioner on 2-1-1990 i.e. after a lapse of about 7 years. The complainant had filed a suit for specific performance of the contract against petitioner Muhammad Sharif and his sisters wherein he had averred that petitioner Muhammad Sharif alongwith his sisters had received Rs.60,000 as advance for the sale of land whereas Rs.10,000 was to be paid at the time of execution of the sale-deed. The said suit was dismissed by the learned Civil Judge, Bahawalnagar on 15-3-1992. Neither the pronote nor its duplicate was produced before the trial Court as well as the writer of the same was not produced.

8. In the application of the complainant moved through the Deputy Commissioner, Bahawalnagar, the complainant did not disclose criminal liability and if there was any dispute between the complainant and the petitioner, it was with regard to the civil liability arising out of a pronote allegedly executed by the petitioners in favour of the complainant.

9. Pursuant to the above discussion, I am of the view that the prosecution has failed to establish its case beyond doubt against the petitioners and resultantly the criminal revision is allowed. The petitioners are acquitted. They are present on bail, their bail bonds are discharged. N.H.Q./M-1616/L?????????????????????????????????????????????????????????????????? Revision petition accepted.