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Petition- for Special Leave to Appeal No. K-63 of 1967, decided on 29th January 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 13th November 1967, in Criminal Miscellaneous Application No. 179 of 1966).
S. 406-Partnership-Criminal proceedings against partner-High Court moved for quashment under S. 561-A refusing to interfere holding that although partner cannot be prosecuted for disposal of partnership property yet if partner engaged to look after property disposes of that property and appropriates proceeds to himself he is guilty of criminal breach of trust-Contention that no such averment in complaint that accused had been specifically engaged to look after property and as such High Court's order was not sustainable in law-Special Leave to Appeal granted by Supreme Court to consider question-Criminal Procedure Code (V of 1898), S. 561-A.
A. K. Brohi, Senior Advocate Supreme Court (Muhammad Hayat Junejo, Advocate Supreme Court with him) instructed by Abdul Hafeez Memon, Attorney for Petitioners.
nemo for Respondents.
Date of hearing: 29th January 1968.
-A complaint has been lodged by the respondent in the Court of a local Magistrate under sections 421, 424 and 406, P. P. C. against the petitioners on the accusations that they have dishonestly and with a view to defraud and cheat him disposed of certain properties of the firm belonging to the parties and misappropriated the sale proceeds.
A petition under section 561-A, Cr. P. C., was filed by the petitioners in the High Court for quashing the proceedings in the complaint on the plea that the dispute between the parties was of a civil nature and that a partner cannot be prosecuted for disposal of partnership property. The learned Judge in them High., Court who dealt with the petition agreed with the contention, but on the view that if a partner is engaged to look after the property of the firm and he disposes of the property of the firm and appropriates the proceeds to himself he thereby commits an offence under section 408 (sic), P. P. C. has dismissed the petition.
Leave is asked for to appeal from the order of the High Court on the ground that in the absence of as averment in the complaint that the petitioners had been specifically engaged to look after the properties of the partnership or to dispose the of the view expressed by the learned Judge that:
"The sole question therefore which is to be considered for the purpose of deciding whether the proceedings should or should not be quashed will be whether the activities- of the applicants in disposing of the property were as partners or a persona specially authorised by the partners to carry out the transactions on behalf of the partnership. This issue cannot made clear from the complaint or from the evidence which was examined at the time when preliminary inquiry was held. It is, therefore, necessary to have evidence on record to decide as to whether the applicants would be liable criminally or civilly was not sustainable in law."
The contention raised receives prima facie support from the record. We grant leave to appeal. Proceeding in the trial Court shall remain stayed till the disposal of the appeal.
Petition accepted.
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