1977 P Cr (PLP)

This petition, by a person who is said to be a cloth merchant and a landlord, calls in question the proceedings instituted against the petitioner by respondent Mahruddin under section 406, P, P. C. for allegedly committing breach of trust of a radio which the said Mahruddin is alleged to have given to the petitioner for repairs.

2. The facts of the case, in brief, as stated in the complaint are that petitioner Khalilur‑Rehman came and stayed with respondent Mahruddin at a village near Ghotki, where the latter gave a Philips Radio to the petitioner for getting it repaired. It is further alleged in the complaint that since the petitioner failed to return the radio to respondent Mahrudding contacted the petitioner at Karachi and enquired about his radio, but despite the fact that respondent Mahruddin found his radio in the possession of the petitioners son, the petitioner refused to return the radio to him and on the contrary abused him and turned him out telling him that he would retain the radio as the respondent, while in his service had committed dishonestly. 3. 1 have heard Mr. Ghulam Abbas Soomro, the learned counsel for the petitioner and Mr. Abdul Satter Sheikh, the learned Assistant Advocate General, who appeared for the State.

4. Mr. Soomro assailed the proceedings against the petitioner on two grounds, namely: ‑ (i) That the version given by respondent Mahruddin in the complaint is so utterly improbable that it cannot be accepted by any Court nor can it form the base of conviction. (ii) That, in any case, the ingredients of offence under section 406, Cr. P. C. are not made out, as there was neither an entrustment of any radio by respondent Mahruddin to the petitioner nor the petitioner has dishonestly misappropriated any property of the said respondent.

5. Mr. Soomro's arguments, in support of his second contention were that even according to the complaint, it was not the petitioner who had asked respondent Mahruddin to give him his radio for repairs. The submission of the learned counsel was that where one party to another voluntarily gives property, there is neither a contract nor an entrustment and therefore the material ingredient of an offence under section 406 is wanting. I am afraid that I am unable to appreciate the submission of thy learned counsel. If, in fact, respondent Mahruddin did give a radio to the petitioner for repairs and the latter took the same, there was an implied agreement and understanding between the parties that the radio was being taken for the purposes of repairs and would be returned when the repairs were done, and if the radio could not be repaired, then the un‑repaired radio would be returned to Mahruddin.

5. So far as the second ingredient of the offence of section 406 is concerned, namely, dishonest conversion or misappropriation even a temporary retention, if it is for a dishonest purpose, would be a wrongful and dishonest conversion for the purposes of section 405, P. P. C. If the story of respondent Mahruddin is accepted that he had given a radio for repairs to the petitioner and that later the radio was found by him with the petitioner's son, but the petitioner refused to return the radio on the ground that respondent Mahruddin, while in the service of the petitioner, had committed misappropriation and dishonesty, then there would be a dishonest retention on the part of the petitioner.

7. As to the question whether the allegations contained in the complaint are so inherently probable that no Court would accept the same or base a conviction thereon, I have given anxious consideration to the same. As already stated, the petitioner is a prosperous businessman, being a cloth dealer and a landlord. The fact that he is a landlord is borne out by a certified copy of an order passed by a Rent Controller, Karachi, accepting the petitioner's application for the ejectment of one Syed Farzand Rizvi. Who was occupying commercial premises belonging to the petitioner? In fact, it is the case of the petitioner that this Farzand Rizvi, by reason of that ejectment order, is on inimical terms with the petitioner and has been instrumental not only in filing the present case through respondent Mahruddin, but also two other cases against him, one under sec tion 324, P. P. C. at Khairpur and the other under section 307/34 at Lahore. It may be mentioned here that the case at Khairpur has since been ordered by this Court to be transferred to Karachi and the proceedings in the case at Lahore have been stayed by order of the Lahore High Court. It appears to me to be difficult to believe that a person of the status of the petitioner would go and stay in a village with respondent Mahruddin, who has admitted in his complaint that he is a poor man and has claimed that at one tune be was the employee of the petitioner. No reasons have been shown in the complaint why the petitioner at all went to respondent Mahruddin s village near Ghotki or what. Work, if any, he had there and how long he stayed there. The complaint, as also the statement of the witnesses recorded in the preliminary enquiry, are also silent as to wherefrom Mahruddin acquired the radio which he is supposed to have given to the petitioner for repairs. No witness was also been cited in the complaint nor has mention been mace therein or in the statements of the witnesses in the preliminary enquiry as to the persons who were shown the radio for repairs, though it is urged in the complaint that the radio was shown to several dealers but it was found to be unrepairable. If the radio in fact was unrepairable, there was no reason why either respondent Mahruddin should have giver: it to the petitioner for repairs or the petitioner should have accepted the same. Then again the repairs of the radio, specially, as urged, if it had some major fault, would have cost a good sum, but nothing is mentioned in the complaint to indicate that respondent Mahruddin either gave any money to the petitioner for its repairs or even promised to give money for the same. No doubt, 2 witnesses, namely, Fakir Muhammad Pandhi, have supported the version of respondent Mahruddin that he had given a radio for repairs to the petitioner, but these two witnesses curiously are not even resident of the village to which respondent Mahruddin belongs and they have given no reasons who they should have fortuitously been present when the alleged entrustment of the radio took place. It is apparent drat they are obliging witnesses and it is not at all possible, in the circumstances, to place any reliance on them.

8. On a careful examination of all the circumstances in the case, I am of the opinion that the entire prosecution story is incredible and that tile case is certain to end in acquittal. In the circumstances, it would be a mere harassment of the petitioner to allow the proceedings to continue against, trim. I would accordingly accept tile petition and quash tile proceedings against the petitioner. Proceedings quashed.