2001 SCMR265

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Munir A.

Sheikh and Nazim Hussain Siddiqui, JJ

DILBER HUSSAIN HASHMI and another---.Appellants

versus

MUSLIM COMMERCIAL BANK, SHAHRA-E-IQBAL BRANCH,

QUETTA ---Respondent

Civil Appeal No.99-Q of 1994, decided on 21st September, 2000.

(On appeal from the order, dated 16-9-1993 passed by the Balochistan High Court,
Quetta in R. F. A. No. 15 of 1993).

(a) Contract Act (IX of 1872)---

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted

by Supreme Court to consider whether there was sufficient oral and documentary
evidence to justify to hold that the relevant documents and mortgage deed was
obtained from the appellants under coercion and duress.

(b) Contract Act (IX of 1872)---

----S. 15---"Coercion"----Defined.

The term "coercion" is defined in section 15 of the Contract Act. It means committing
or threatening to commit any act forbidden by the Pakistan Penal Code or unlawful
detaining or threatening to detain any property to the prejudice of any person whatever,
with the intention of causing any person to enter into an agreement.

(c) Specific Relief Act (I of 1877)---

----S. 39---Contract Act (IX of 1872), S. 15---Cancellation of document-- Plea of

coercion and duress---Concurrent findings of both the Courts below---Appellants
misappropriated certain amount and during criminal proceedings acknowledged their
liability to the tune of Rs.366,534.59 and executed the disputed mortgage deed---Mere
fact that agreement was entered into under fear of a criminal proceedings was not
sufficient to avoid the agreement on the ground of coercion, and that simply because a
creditor threatened his debtor to involve him in a criminal case---Where there were
some basis for the prosecution, the same would not be "coercion"-- Documents in
question, held, were executed voluntarily in circumstances.

Rameshwar Marwari v. Upendranath Das Sarkar AIR 1926 Cal. 455 and Kazi Noor
Muhammad v. Pir Abdul Sattar Jan PLD 1959 Kar. 348 ref.

Appellants in person. M.K.N. Kohli, Advocate-on-Record for Respondent.

Date of hearing: 21st September, 2000.

JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J.---This appeal by leave of this Court is directed
against the judgment and decree, dated 14-9-1993 and 16-9-1993 respectively, passed
by a learned Division Bench, High Court of Balochistan, Quetta in R.F.A. No. 15 of
1993.

2. Leave to appeal was granted on 20-12-1994 by a Full Bench of this Court to

consider that whether there was sufficient oral and documentary evidence to justify to
hold that the relevant documents and mortgage deed were obtained from the appellants
under coercion and duress.

3. Appellant No.2 Syed Mahmood Ali Shah is brother-in-law of appellant No.1 Dilber
Hussain Hashmi. The appellant No.2 was employed with respondent Bank as Manager
at Cantonment Branch, Quetta. It, appears that in said Branch two Accounts Nos.1872
and 1404 titled as "Mahmood and Brothers" and "Dilber Hussain Hashmi" respectively
were maintained and operated by appellant No.1. The respondent Bank lodged a
complaint alleging that the appellant No.2, while posted as an officer at Shahra-e-Iqbal
Branch had facilitated the appellant No. l to withdraw various amounts from the
accounts, although the appellant No.1 was not competent to withdraw those amounts
nor appellant No.2 was empowered to allow such payment. On the receipt of the
complaint. F.I.A. Authorities initiated action and arrested both the appellants, but later
on; they were released on bail by the then learned Sessions Judge. In the year 1985, the
appellants were summoned for trial before the Summary Military Court No.2,
Balochistan. During trial, the appellant No.1, on 23rd May, 1985 executed a
memorandum of agreement in favour of the respondent, wherein he acknowledged his
liability to the tune of Rs.3,66,534.59. It was the amount, which had been fraudulently
withdrawn from the bank. He agreed to pay said amount to the bank within a maximum
period of one year from said date. It was agreed that said amount was to be treated as
loan. He also agreed to execute registered mortgage deed of the properties viz (1) Plot
No. l-D, Shahbaz Town, Quetta Cantt. measuring 400 square yards, belonging to the
appellant No.2 and (2) Plot No.375 measuring 200 square yards situated in Samungli
Road, Quetta belonging to his (Dilber Hussain Hashmi) wife namely, Mrs. Arifa
Jabeen Shah as security for repayment of said loan.

On the same date viz. 23-5-1995 mortgage deed was also executed in favour, of the
respondent by the wife of the appellant No. l and appellant No.2 in respect of aforesaid
properties with terms and conditions mentioned therein.

4. The appellant No. l was acquitted by the Military Court, while the appellant No. 2
was convicted and sentenced to suffer for 7 months' S. I. and also to pay fine of
Rs.5,000 on the charge of negligence.

5. On 29-10-1986 the appellants filed suit for declaration and permanent injunction,
seeking cancellation of agreement and mortgage deed referred to earlier. The
respondent repudiated all the allegations made in the plaint. The respondent stated that
the complaint, which was filed against the appellants was investigated and was found
true. When the facts were revealed during investigation of the complaint the appellant
admitted their liability and furnished the security of the amount, which they had
misappropriated.

6. Learned trial Judge, vide detailed judgment, dated 18-2-1993, dismissed the suit and
held that the appellants had failed to produce any evidence to show that they were
pressurised for executing said documents. Also he observed, that those documents were
executed in May/June, 1985, while the suit was filed in October, 1986 and the delay so
involved was not satisfactorily explained. He noted that those documents were not
executed or signed before the Presiding Officer of the Military Court and that the
registration of these documents was made before a third person i.e. Sub-Registrar.
Learned trial Judge also held that allegations of torture, confinement and harassment
were not established. Accordingly, he dismissed the suit, which findings after close
scrutiny were affirmed by the High Court.

7. It is contended by, the appellant No. 2, who appeared in person, that trial Court and
High Court have failed to appreciate the evidence in its true perspective. He also
argued that there was sufficient evidence on record to hold that the appellants were
pressurised by the Presiding Officer of the Military Court to pay the aforesaid amount
and they were not in a position to defy the orders of the military authorities. In support
of above contentions, he specifically referred to the letter, dated 9-5-1985 (Exh.P/1)
written by General Manager of the respondent Bank, Circle Office Qazi Essa Khan
Road, Quetta (Balochistan) and addressed to Mr. Mumtaz Ali I. Hussaini, Vice-
President and Senior Executive of the Bank, Head Office, Karachi, wherein request of
an early action was made as the Military Court had instructed to expedite the matter.

8. Precisely stated, the contention is that the documents in question would never have
been executed, had the appellants not been coerced.

9. The term 'coercion' is defined in section 15 of the Contract Act. It means committing
or threatening to commit any act forbidden by the Pakistan Penal Code or- unlawful
detaining or threatening to detain any property to the prejudice of any person whatever,
with the intention of causing any person to enter into an agreement. Both the trial Court
and High Court reached the same conclusion that the appellants were not coerced and'
they executed said documents, when it was established during the investigation as well
as during trial that they had misappropriated said amount. They had acknowledged
their liability. During the course of argument before us, it was not established that they
were not liable to pay said amount. The factum of misappropriation was not denied. On
the contrary, it was argued that it was the Cashier, who had done the mischief.

The appellant, however, conceded before us that the Cashier was neither arrested nor
challenged in this case. Mr. K.N. Kohli, learned Advocate-on- Record for respondent
cited:

(1) Rameshwar Marwari v. Upendranath Das Sarkar (AIR .1926 Calcutta 455).

(2) Kazi Noor Muhammad v. Pir Abdul Sattar Jan (PLD 1959 Karachi 348).

to contend that mere facts that an agreement was entered into under fear of a criminal
proceeding was not sufficient to avoid the agreement on the ground of coercion, and
that simply because a creditor threatens to his debtor to involve him in criminal case, it
will not be coercion, if there are some basis for such a prosecution.

10. Adverting to the facts - it is noted that aforesaid amount was misappropriated and
even appellant No.2 was convicted. The prosecution had never given any assurance to
the appellants in respect of said trial. Ire documents in question were executed
voluntarily.

11. In consequence, we do not find any merit in this appeal, and the, same is dismissed
with costs.

Q.M.H./M.A.K./D-11/S Appeal dismissed.

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