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Criminal Miscellaneous Application No. 224 of 1974, heard on Ist October, 1979.

Criminal Procedure code (v of 1898)‑---

--‑‑S. 561‑A‑Criminal breach of trust‑Complainant resorting to process of criminal proceedings although having a consent decree which could have been got executed‑Complainant, held, not justified at all in filing F. I. R. substituting criminal proceedings for redress of a civil liability‑Criminal, proceedings being used to insult and humiliate applicants and as a lever to settle civil dispute existing between parties‑Proceedings pending against applicants quashed‑Penal Code (XLV of 1860), S. 409/477‑A/109/34.

M. H. Shah for Appellants

Muhammad Hayat Junejo for Respondent No.1.

Hayat Junejo for Respondent No.

Nooruddin Sarki for the State.

Dates of hearing : 29th September, and 1st October, 1979.

MUHAMMAD ZAHOORUL HAQ, J.‑

This is an application by Muhammad Asif Sultan and his son Wasif Sultan seeking the quashment of proceedings under section 420/408, P. P. C. which were initiated on the F. I. R. No. 370/73 'of Nasir Jaffer lodged at Ferozeabad Police Station, Karachi on 8‑9‑1973 and where the police had arrested the two applicants, recovered carpets from the premises of Markaze‑Qaleen and challaned the case under section 409/477‑A/109/34, P. P. C. in the Court of XIIIth Additional City Magistrate, Karachi.

In 1972‑73 due to the labour trouble the directors of M. 1. C. Ltd. decided to remove the carpets from the factory to different premises including the premises of the firm Markaze‑Qaleen, which was owned by the sons of the complainant. Thereafter, some disputes arose between the applicants and the complainant side which filed Suit No. 151/1973 for injunction/damage/ accounts against the applicant in April, 1973. In para one of the plaint it was alleged that some of stock of carpets of National Carpet Industries was transferred to the premises of Markaz‑Qaleen after Asif Sultan had represented to the plaintiff that such transfer would minimize labour trouble. But the said suit was however compromised on 16‑6‑1973 and a consent decree was passed and Asif Sultan agreed to account for all carpets and hand over delivery of all existing carpets belonging to National Carpet Industries and it was also agreed that thorough audit of accounts had to take place and any dispute was to be referred to the arbitration of one Mr. Feldman. In spite of the consent decree still some disputes continued as Asif Sultan insisted on stock thing, while Suleman Jaffer and his side insisted on delivery of carpets to National Carpet Industries by Asif Sultan, but he did not agree to do the same without audit and accounting and he asked Mr. Feldman to work as arbitrator. Consequently, on 8‑9‑1973, Nasir Jaffer filed an F. 1. R. under section 420/406, . P. P. C. against Mr. Asif Sultan, Wasif Sultan and Iqbal alleging that they had illegally removed some carpets belonging to National Carpet Industries and despatched the same in the name of their firm Markaze‑Qaleen. On the basis of the said F. 1. R. the police authorities of Ferozabad Police.. Station arrested Asif Sultan and his son Wasif Sultan and the police took Wasif Sultan with them to the premises of Markaze‑Qaleen and broke open the lock and took away the carpets. . Nasir Jaffer was with the police at that time. This happened between 9th and 12th September 1973.

Mr. M. H. Shah counsel ‑for the applicants has argued that the criminal proceedings had been filed in order to force his clients to accede to the demands of the complainant and that the alleged removal of stocks to the premises of Matkaz‑e‑Qaleen had taken place with the approval or at least consent of all the directors and that in the suit filed by the side of the com plainant in para. 7 it was admitted that the carpets had been removed with prior information to the complaining party and with their consent in order to minimise labour trouble and in the said suit no grievance had been made against the said removal. These are all justified contentions and on perusal of the plaint, I find that the same are correct. Such being the position it was hardly open to the Director Nasir Jaffer, who belongs to the party of the plaintiff to the said suit to now turn around and say that by despatchi6g the carpets to Markaz‑e‑Qaleen Asif Sultan and his son had cheated the company, when in fact the other directors had admitted they had complete confidence in Mr. Asif Sultan and Asif Sultan had removed the carpets after informing , the directors. The very basis of the complaint is completely unfounded and seems to be a method to secure the delivery of the carpets from Asif Sultan, who was refusing to deliver the carpets and was insisting on advance account taking. This stand of Asif Sultan may have been unjustified and may be regarded as not in complete accordance with the consent decree, but it did not justify a criminal action. He and his son were allegedly made to sit in the Police Station from morning till evening on the 8th of September 1973, and then, let off. Then, again on the morning of 9‑9‑1979, he was arrested at the Airport. The complainant also got Wasif Sultan arrested on the same day and also got an account of the arrest published in Newspapers for which the applicants moved an application for contempt. These actions do indicate the purpose of the F. I. R. which was to insult the applicants. Not only that but the carpets were also recovered from the premises of Markaze‑e‑Qaleen by the police and kept at the police station and thus the whole purpose was achieved. I fail to understand as to why the complainant resorted to the process of criminal proceedings when his side had the consent decree with them and they could have got the same executed. The applicants contend that the complainant wanted to get the delivery of the carpets without the accounts having been gone into and therefore the criminal process was used to browbeat the applicants into submission instead of resorting to remedy of a civil process or arbitration as provided in the consent decree. These submissions seem to be weighty and justified.

Mr: Hayat Junejo has opposed the quashment and says action of the complainant and police was justified. But, I am of the view that the complainant was not justified at all in filing the F. I. R. The criminal proceedings were substituted for the redress of a civil liability and the criminal proceedings were used to insult and humiliate the applicants and they were used as a lever to settle the civil dispute which existed between the parties. I am convinced that the criminal proceedings were used as a handle of harassment and their continuation is an unnecessary torture to the applicants.

Therefore, the proceedings pendiug against the applicants under sec tion 409/477‑A/109 /34, P. P. C. in case arising out of F. I. R. No. 370/73 recorded at Ferozeabad Police Station on 8‑9‑1973 and pending in‑the trial Court are hereby quashed.

Appeal allowed.

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