2026 PLP 874 (MLD)

Malik Javid Iqbal Wains, J.

Through this petition filed under Section 498, Cr.P.C., the petitioner seeks his pre-arrest bail in case FIR No.1638/2024, dated 28.06.2024, registered under Section 408, P.P.C, with Police Station Sargodha, District Faisalabad.

2. Precisely, according to the contents of the crime report, the petitioner, while serving as Executive Director (Business Development) at Crescent Textile Mills, Faisalabad, is accused of engaging fictitious agents to unlawfully receive commissions ranging from 2-3% in their names. It is further alleged that he later exerted undue influence to enhance the commission rate to 4-5%. Upon internal scrutiny and verification from clients, the company management allegedly discovered that the petitioner had been receiving the said commissions personally, under the guise of these fictitious agents. The reported misappropriated amount stands at USD 748,850, constituting criminal breach of trust. It is also asserted that upon being confronted, the petitioner initially admitted to the misconduct and undertook to return the embezzled amount within two months, but subsequently denied to do so on 14.06.2024, leading to the registration of the present FIR.

3. Arguments heard, record perused.

4. From the perusal of record and the arguments advanced by learned counsel for the parties, it appears that the prosecution case, as set forth in the FIR, primarily rests on the allegation that the petitioner misappropriated commissions by employing fictitious agents. However, a close examination reveals that the essential ingredients of the offence of criminal breach of trust, as defined under Section 405, P.P.C, are prima facie missing in the present matter.

5. There is an accusation of misappropriation of USD 748,850 by the petitioner being Executive Director (Business Development) under the pretext of commission payments through fictitious agents. Section 408, P.P.C specifically deals with criminal breach of trust committed by a clerk or servant, requiring that the accused, in such a capacity, be entrusted with property or exercise dominion over it, and subsequently misappropriated the same. For the offence to be established, both elements i.e. entrustment and dishonest misappropriation must co-exist.

6. The word "entrustment" implies the handing over of property for a specific purpose without transferring ownership, whereas "dominion" denotes control or authority over the said property. However, in the instant case, there is neither a specific allegation nor any material on record to suggest that the complainant entrusted any property to the petitioner in his capacity as a clerk or servant, which the petitioner has misappropriated. In absence of this foundational requirement of entrustment, the applicability of Section 408, P.P.C becomes prima facie doubtful at this stage.

7. During the course of investigation, the statements of Abid Iqbal, Manager Taxation, Aqeel Hussain Shakir, Office Manager, and Irfan Ahmad Butt, Executive Manager, were recorded under Section 161, Cr.P.C. These individuals alleged that payments were made to persons other than the legitimate customers of the company and attributed responsibility for the same to the petitioner. However, they did not furnish any account details, payment trails, or disclose the basis of their knowledge regarding the alleged misappropriation. Furthermore, the petitioner held the position of Executive Director of Business Development, which, on the face of it, does not appear to be connected with the financial affairs of the complainant's company.

8. It also surfaced during the course of investigation that one Umar Jalal, claimed to be an agent of the complainant's company had deposited Rs.5,600,000/- in the bank accounts of the petitioner and his wife, allegedly in lieu of commission. However, no statement of the said agent was recorded by the Investigating Officer to establish any nexus between the petitioner and the alleged misappropriation.

9. The Investigating Officer candidly admitted before this Court that there is nothing on the record specifically, from the deposit slips indicating that these deposits were made in the bank account as commission to the petitioner. Moreover, only photocopies of the deposit slips were provided by Muhammad Irfan, Legal Manager of the complainant, which were taken into possession via recovery memo. by the I.O. These photocopies were neither verified from the concerned bank nor any bank official's statement recorded to confirm their authenticity.

10. Other than aforesaid unverified photocopies of deposit slips, no supporting material was collected by the Investigating Officer to show that the petitioner received any commission through fictitious agents. However, the veracity of the photocopies of these deposit slips would be determined by the trial court after recording of evidence.

11. Moreover, it is an admitted fact that the petitioner and the complainant are real cousins. It has further been brought to the notice of this Court that the petitioner's father is a shareholder in the textile mill where the alleged misappropriation is said to have occurred. In these circumstances, the dispute between the parties, prima facie, appears to be stemmed out of internal financial disagreements within the family.

12. The petitioner has already joined the investigation. The prosecution's case against the petitioner primarily hinges on allegations regarding payments to purported parties and receiving commissions from the agents, the details of which are already available in the company's records and with the investigating agency. No material evidence or documents remain to be recovered, and there appears to be no necessity for custodial interrogation. Accordingly, there is no risk of the petitioner tampering with evidence.

13. It is a settled principle of law that pre-arrest bail is an extraordinary relief and may be granted where the petitioner can show that the accusation has been made with mala fide intent, ulterior motives, or to cause humiliation and disgrace, and where irreparable harm may result from arrest. The petitioner has successfully made a prima facie case of mala fide on the part of the complainant.

14. Considering the nature of the offence and the facts and circumstances of the case, denial of pre-arrest bail would not serve the ends of justice and would run contrary to the intent and spirit of the law. Reliance in this regard is placed on authoritative pronouncements of the Hon'ble Supreme Court of Pakistan in Khair Muhammad and another v. The State through P.G. Punjab and another (2021 SCMR 130).

15. Even otherwise, the case against the petitioner also falls within the purview of further inquiry as contemplated under the law. It is well-settled that pre-arrest, bail may be granted not only on the basis of mala fide or ulterior motives, but also where the accusation necessitates further investigation. In this regard, reliance is placed on the judgment rendered by Hon'ble Supreme Court of Pakistan in Salman Mushtaq v. The State (2024 CMR 14), wherein it has been held as under: "

6. The paramount factors which require consideration while granting pre-arrest bail are whether the arrest will cause humiliation and/or unwarranted persecution or harassment to the applicant for some ulterior motives; or that the prosecution is motivated by malice to perpetrate irreparable injury to the reputation and liberty of the accused. While considering the grounds agitated for enlargement on bail, whether pre-arrest or post-arrest, the atrociousness, viciousness and/or gravity of the offence are not, by themselves, sufficient for the rejection of bail where the nature of the evidence produced in support of the indictment creates some doubt as to the veracity of the prosecution case. Therefore, where, on a tentative assessment, there is no reasonable ground to believe that the accused has committed the offence, and the prosecution case appears to require further inquiry, then in such circumstances the benefit of bail may not be withheld as a punishment to the accused. The Court must dwell on all interconnected rudiments, including the gravity of the offence and the degree of involvement of the applicant/accused for bail in the commission of offence, together with the likelihood of absconding or repeating the offence and/or obstructing or hindering the course of justice, or any reasonable apprehension of extending threats to the complainant or witnesses or winning over the prosecution witnesses." Further reliance can be placed on Ahtisham Ali v. The State (2023 SCMR 975). However, the guilt of the petitioner would be determined by the trial court after recording of evidence.

16. Consequently, this pre-arrest bail petition is allowed. The ad-interim pre-arrest bail already granted to the petitioner is hereby confirmed, subject to his furnishing fresh bail bonds in the sum of Rs.500,000/- (Rupees Five Hundred Thousand only), with one surety in the like amount to the satisfaction of the trial court.

17. It is clarified that the above findings arrived at by this Court are tentative in nature and shall not prejudice the trial, which shall be conducted independently on its own merits MQ/U-12/L Bail granted.