IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN  
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CIVIL PETITION NO. 3130 OF 2020 
(On appeal against the judgment dated 01.10.2020 
passed by the Islamabad High Court, Islamabad in 
Writ Petition No. 1536/2020) 
 
 
Muhammad Ali 
 
… Petitioner 
Versus 
Samina Qasim Tarar and others 
 
… Respondents 
 
For the Petitioner: 
Mr. Muhammad Shahid Kamal Khan, ASC a/w 
petitioner in person 
 
 
For Respondents (1-2): Nemo 
 
 
For the State: 
Mr. Jehangir Jadoon, A.G. Islamabad 
Mr. Fakhar Abbas, S.I.  
 
 
Date of Hearing: 
29.09.2022 
 
JUDGMENT 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under 
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the 
petitioner has called in question the vires of judgment dated 01.10.2020 
passed by the learned Islamabad High Court, whereby the writ petition 
filed by the respondents was allowed and the FIR No. 163 dated 
28.04.2020 registered under Sections 406/448 PPC at Police Station Lohi 
Bher, Islamabad registered against them, was quashed.  
2. 
 
Briefly stated the facts of the matter are that respondent No. 
1 was owner in possession of House No. 1885, Road No. 1, Phase-III, 
Behria Town, Rawalpindi. The respondent Nos 1 & 2 are husband and wife. 
The petitioner and the respondent No. 1 entered into an agreement to sell 
Civil Petition No. 3130/2020 
-: 2 :-
the said house dated 30.07.2019 for a total sale consideration of 
Rs.19,600,000/-. The petitioner paid an amount of Rs.65,00,000/- as 
earnest money and took possession of two rooms on the upper portion of 
the said house. The balance sale consideration of Rs.13,100,000/- was to 
be paid by or before 30.09.2019 with the one month grace period i.e. upto 
30.10.2019. According to the petitioner, the last date for payment of 
balance amount was extended to 31.12.2019. Later on, he paid yet 
another amount of Rs.10,00,000/- and Rs.500,000/- on 15.10.2019 & 
04.11.2019 respectively. However, when the petitioner approached the 
respondents for transfer of the house in his name on the fixed date, they 
declined to do so. Subsequently, it transpired to the petitioner that the 
respondents have sold the said house to another person. Being aggrieved, 
the petitioner got registered the afore-referred FIR against the 
respondents. Thereafter, the respondents filed Writ Petition No. 
1536/2020 before the Islamabad High Court, Islamabad, seeking 
quashment of the said FIR, which has been allowed vide impugned 
judgment. Hence, this petition seeking leave to appeal.  
3. 
 
At the very outset, learned counsel for the petitioner 
contended that pursuant to the agreement to sell, the petitioner was 
given possession of two rooms in the house in question where he shifted 
his luggage etc but the respondents sold the property to another person, 
therefore, committed criminal breach of trust. Contends that the learned 
High Court has ignored the fact that other efficacious remedies are 
available to the respondents, therefore, there was no justification for filing 
of the Constitutional petition. Contends that the impugned order is unjust 
and arbitrary, which has resulted in grave miscarriage of justice, therefore, 
the same may be set at naught.  
4. 
 
No one entered appearance on behalf of the respondents to 
prosecute this matter. The respondents were sent notices on their 
previous as well as on fresh addresses but according to the report of the 
process server, the house was locked and the phone number was switched 
off. To procure the attendance of the respondents, this Court vide order 
Civil Petition No. 3130/2020 
-: 3 :-
dated 18.08.2022 directed for publication in daily ‘Jang’ but despite 
publication, no one appeared on behalf of the respondents. In these 
circumstances, we are left with no other option but to proceed with the 
matter on merits.  
5. 
 
Learned Advocate General, Islamabad, defended the 
impugned order by stating that the transaction in dispute falls within the 
ambit of civil liability for which a civil suit is pending adjudication between 
the parties and the same cannot be converted into criminal liability. 
6. 
 
We have heard learned counsel for the petitioner as also 
learned Law Officer at some length and have perused the relevant 
provisions of law.  
 
 
A bare perusal of the record reveals that the petitioner and 
the respondent No.1 entered into an agreement to sell the house referred 
above for a total sale consideration of Rs.19,600,000/-. The petitioner paid 
an amount of Rs.65,00,000/- as earnest money and took possession of two 
rooms on the upper portion of the said house. Subsequently, he paid 
another amount of Rs.10,00,000/- and Rs.500,000/- on 15.10.2019 & 
04.11.2019 respectively. However, when the petitioner approached the 
respondents for transfer of the house in his name, they declined to do so 
and ultimately sold the said house to another person. This led to 
registration of FIR, detail of which has been mentioned above. The 
respondents invoked Constitutional jurisdiction of the High Court seeking 
quashing of FIR on the plea that no offence of criminal breach of trust is 
made out. Before proceeding further with the case, it would be in order to 
reproduce Section 405 PPC, which defines criminal breach of trust. The 
same reads as under:-- 
 
"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 of prescribing the mode in which such 
trust is to be discharged, of any legal contract, express or 
implied, which he has made touching the discharge of such 
Civil Petition No. 3130/2020 
-: 4 :-
trust, or wilfully suffers any other person so to do, commits 
'criminal breach of trust'." 
  
7. 
 
From the bare reading of the afore-quoted provisions of law, 
it appears that to constitute an offence falling within the ambit of criminal 
breach of trust following ingredients are essential:-- 
  
(i) 
There should be an entrustment by a person who reposes 
confidence in the other, to whom property is entrusted. 
 
(ii) 
The person in whom the confidence is placed, dishonestly 
misappropriates or converts to his own use, the property 
entrusted. 
 
(iii) 
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.  
 
(iv) 
Dishonestly uses or disposes of that property in violation 
of any legal contract express or implied which he has made 
touching the discharge of such trust. 
 
8. 
 
To constitute an offence of criminal breach of trust defined 
in Section 405 PPC, which is punishable under Section 406 PPC there must 
be an "entrustment" of property with the accused and a misappropriation 
of the same by him. The expression "entrustment" with the property or 
with any domain over the property has been used in a broader sense 
under Section 405 PPC. It has wide and different implications in different 
context. The expression "trust" in Section 405 PPC is a comprehensive 
expression and has been used to denote various types of relationship, like 
relationship of trustee and beneficiary, bailor and bailee, master and 
servant, pledger and pledgee. It is established law that while using the 
inherent powers, the High Court is to determine whether continuance of 
the proceedings would constitute a gross abuse of the judicial process. 
Both under the criminal law and civil law remedy can be pursued in diverse 
situations. Although they plainly overlap, they do not always exclude one 
another, and essentially vary in both content and impact. An act does not 
lose its criminal nature just because it has a civil liability. It is wrongly 
presumed that when a civil liability is under challenge and its discipline 
Civil Petition No. 3130/2020 
-: 5 :-
relates to civil remedy, criminal prosecution is unsustainable. This 
impression has been clarified by this Court while rendering a number of 
judgments on this subject. In the instant matter without critically analyzing 
the scope of quashing of FIR, we are surprised to note that the alternative 
remedy of filing petition under the law was not availed rather directly 
filing a Constitution petition calling in question the very registration of FIR 
was something extraordinary coupled with the fact that the contents of 
the crime report were totally ignored and were not taken into 
consideration while adjudicating the matter in hand. The fate of deciding 
any criminal litigation primarily without recording of evidence seems to be 
something which has narrow scope. However, this principle is not 
absolute. In an appropriate case where complete injustice has been done, 
a Constitutional remedy can be pressed into and that can prove to be 
beneficial if the contents of the same warrant interference by a 
Constitutional court. Even otherwise, the legal remedy provided under the 
statute is based upon two words used by the Legislature i.e. “possibility” 
and “probability”. Both these words in their entirety are sufficient to 
provide remedy to a sufferer of criminal litigation if at all it infringes the 
legal rights of any litigant on the basis of malicious prosecution. In the 
instant case a bare perusal of the FIR and the agreement to sell prima facie 
reveals that a clear allegation of entrustment and misappropriation of the 
property was made by the petitioner against the respondents in the FIR, 
which prima-facie discloses an offence under Sections 405 PPC punishable 
under Section 406 PPC. Admittedly, despite lapse of statutory period, the 
challan had not been submitted before the Trial Court, which ex-facie 
means that investigation had not been completed. In such circumstances, 
the possibility cannot be ruled out that further material may be collected 
for proceeding with trial. In view of the above, we are of the view that 
question regarding determination as to whether there was an entrustment 
of property, as asserted by the petitioner, could best be left to Trial Court 
to consider and decide in exercise of its power after recording of evidence.  
9. 
 
For what has been discussed above, we convert this petition 
into appeal, allow it and set aside the impugned judgment dated 
Civil Petition No. 3130/2020 
-: 6 :-
01.10.2020 passed by the learned Islamabad High Court. The prosecution 
branch is directed that the challan of the case be submitted before the 
Trial Court without un-necessary delay. The Trial Court shall proceed with 
the matter in accordance with law.  
 
 
JUDGE 
JUDGE 
Islamabad, the 
29th of September, 2022 
Approved For Reporting 
Khurram 
 
