2025 PLP 1580 (MLD)

Inam Ullah Khan, J.

Petitioner through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has called in question the vires of Judgment dated 14.11.2023 passed by the learned Additional Sessions Judge-VI, D.I.Khan/Justice of Peace, whereby the application under Section 22-A(6), Cr.P.C. of the respondent No.1 was allowed and also sought quashment of the FIR No.425 dated 17.11.2023 under Section 406, P.P.C of Police Station Gomal University, D.I.Khan, as registered in compliance of the judgment dated 14.11.2023.

2. Facts of the case are that the respondent No.1 filed an application under Section 22-A(6), Cr.P.C. before, the learned Justice of peace seeking issuance of direction to the local police to register criminal case against the petitioner on the allegation that he purchased the motorcar on the basis of instalments from respondent No.1 but thereafter failed to pay the agreed instalments. The justice of peace sought comments from the SHO concerned and after hearing arguments, allowed the petition under section 22-A(6), Cr.P.C. vide judgment dated 14.11.2023 and directed the local police to register criminal case against the petitioner. Accordingly, the above referred FIR was registered against the petitioner. Now the petitioner has challenged the order of learned justice of peace as well as the FIR No. 425 of 2023 by filing the instant writ petition.

3. Arguments heard and record perused.

4. The record transpires that the respondent No.1, in his application, admitted the sale of motorcar to the petitioner on the basis of instalments but the dispute pertains to non-payment of instalments. So the question is 'whether the allegations in the complaint make out a case of criminal breach of trust under section 405 which is extracted below: "

405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust".

5. A careful reading of the section shows that a criminal breach of trust involves the following ingredients : (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. When section 405 P.P.C which defines 'criminal breach of trust' speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. The question is whether there is 'entrustment' in a Sale? Sale defined in Section 54 of the Transfer of Property Act, 1882, is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. In case of sale both ownership of the movable property and possession thereof, transferred to the purchaser and the seller then lost the right of an equitable charge over the property however, he may have the right to claim payment from the purchaser. But, being a sale transaction, there is no 'entrustment of the property' or 'entrustment of dominion over the property' by the respondent No.1 to the petitioner, and for this reason, it is not a case of criminal breach of trust. The august Supreme Court of Pakistan in the case of "Abbas Haider Naqvi and another v. Federation of Pakistan and others" (PLD 2022 SC 562) has defined the criminal breach of trust in the following manner:

16. Although the "entrustment" of property within the meaning of Section 405, P.P.C. does not envisage the creation of a formal trust with all the technicalities of the law of trust, it does contemplate that to constitute entrustment the accused must have held the property in a fiduciary capacity. The word "trust" has been used in Section 405 in the ordinary sense of that word, and covers not only the relationship of trustee and beneficiary but also that of bailer and bailee, master and servant, pledger and pledgee, guardian and ward, and all other relations that postulate the existence of a fiduciary relationship between the complainant and the accused. The entrustment of property implies that the ownership of the entrusted property vests in a person other than the one who is entrusted with it. If the property belongs to and is owned by the accused in his own right, it cannot be said that he was entrusted with that property and that by using or disposing of that property he committed the offence of criminal breach of trust. "Entrustment" is an essential ingredient of the offence of criminal breach of trust as defined in Section 405, P.P.C.; therefore, where there is no entrustment of property, there can be no criminal breach of trust.

6. When a trust is created vesting a property in the trustee, the right of the beneficiary against the trustee (who is the owner of the trust property) is known as the `beneficial interest'. The trustee has the power of management and the beneficiary has the right of enjoyment. Whenever there is a breach of any duty imposed on the trustee with reference to the trust property or the beneficiary, he commits a breach of trust. Admittedly in this case there is a sale transaction of the motorcar, and therefore, the petitioner on the basis of such sale has become absolute owner of the motorcar, and as far the dispute of non-payment of installments towards price of motorcar is concerned, the same is undoubtedly a money dispute between the parties and entrustment does not operate in money matter. Though there might be some breach of trust regarding payment of the installments as agreed between parties, but every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens-rea gives rise to a criminal prosecution as well. While rendering this view, we are fortified by the dictum laid down by the Supreme Court o of India in the case of "S. W. Palanitkar and others v. State of Bihar and another" reported in AIR 2001 SC 2960.

7. To sum-up the above, the petitioner has prayed also for quashment of the FIR No.425 dated 17.11.2023 of Police Station Gomal University, D.I.Khan, in this constitutional petition, in addition to challenging the order of the learned justice of peace on the application under 22-A(6), Cr.P.C. of the respondent No. 1 . We have found that no cognizable offence is involved in the present case. In this background, while allowing this petition the impugned order of learned justice of peace is herby set aside and the FIR No.425 supra stands quashed. JK/102/P Petition allowed.