1997 PLP 3033 (MLD)

Shaukat Ali Mehr for Petitioner. Zafar Iqbal Chohan for Respondent No. 3 A case under section 406, P.P.C. was registered against the petitioner on the report of one Noor Ahmad son of Wali Muhammad on the ground that the petitioner was handed over Rs.2,00,000 to be kept in trust by him for payment of the same to the complainant Noor Ahmad in accordance with the decision of Mehr Khuda. Yar an arbitrator appointed by the parties namely Ghulam Murtaza and the aforesaid Noor Ahmad. The arbitrator allegedly held that Noor Ahmad was entitled to the aforesaid amount but the petitioner refused to make the payment on the ground that he had already spent that amount and that a time of 10 days be given to him to make the payment. The complainant repeatedly demanded aforesaid amount but the petitioner put him off on false promises and ultimately refused to make the payment; hence a case under the aforesaid section was registered against him.

2. The registration of the case is challenged on the ground that the provisions of section 406, P.P.C. were not attracted; and that matter between the parties was of civil nature, for which, a suit was filed by Ghulam Murtaza against Noor Ahmad as well as against the petitioner but the same was dismissed by the Civil Court vide its judgment dated 10‑4‑1996 with the observation that the legality of the award given by the arbitrator could be challenged in a petition under Arbitration Act. In pursuance of that judgment, the petition for arbitration was moved which was still pending and as such criminal action was not competent; being an abuse of legal process. Hence it was prayed that the impugned F.I.R. is liable to be quashed.

3. After hearing the learned counsel for the parties, it is to be seen whether the institution of a criminal action amounted to an abuse of the process of Court, being in violation of the ends of justice. .

4. It is pointed out during the argument that the case has already been sent for trial to the Court concerned after the conclusion of the investigation, in which, the petitioner has been found guilty. The perusal of the F.I.R. prima facie shows that the petitioner was entrusted an amount of Rs.2,00,000 which he had to pay in accordance with the decision of the arbitrator. The arbitrator had given a decision, the photo copy of which is placed Annexure 'E' at page 14 of the record of this petition. It was delivered on 12‑4‑1996 in which the petitioner was directed by the arbitrator to make payment of Rs.2,00,000 to the complainant i.e. Noor Ahmad respondent No.3. As such it is obvious that the petitioner was prima facie liable to pay the amount kept by him in trust vide the document executed by him to that effect. The mere fact that the parties have challenged the arbitration award under the Arbitration Act would not guillotine the F.I.R. which has been registered on the basis of deed executed by the petitioner whereby he had expressly undertaken to keep the money with him in order to make its payment to a party in accordance with the order of the arbitrator. As such the F.I.R. in question cannot be killed in its inception particularly when a report under section 173, Cr.P.C. has already been sent to the court concerned thereby holding that the petitioner is liable to be prosecuted for committing the criminal breach of trust under section 406, P.P.C. I, therefore, do not find any good ground for the quashment of the impugned F. I. R.

5. The writ petition being meritless is hereby dismissed. N.H.Q./A‑143/L Petition dismissed