2020 PLP 576 (YLR)

SADIQ MAHMUD KHURRAM, J.

By this single order Criminal Miscellaneous No.1912-B/2019, titled Tahir Hussain v. The State and another and Criminal Miscellaneous No.1927-B/ 2019, titled Rehmat Ali and another v. The State and another, arising out of the same FIR, are being decided.

2. The petitioner namely Tahir Hussain (petitioner in Criminal Miscellaneous No. 1912-B/2019) seeks pre-arrest bail in case FIR No.92 of 2019 dated 14.02.2019, registered at Police Station Saddar Sadiqabad, District Rahim Yar Khan in respect of an offence under section 406 P.P.C. Petitioners namely Rehmat Ali and Barkat Ali (petitioners in Criminal Miscellaneous No. 1927-B/ 2019) also seek pre-arrest bail in the same case.

3. The allegation as against the petitioners is that on 19.01.2017 they were handed over an amount of Rs.7,12,000/- by the complainant which they had dishonestly misappropriated.

4. I have heard the learned counsel for the parties and learned Deputy Prosecutor General and with their able assistance perused the record.

5. At the very outset, this Court has observed that there is a delay of two years in getting the FIR registered. In the FIR no reasonable explanation has been offered for such a deferral in reporting the matter to the police. The delay is conspicuous by its length and casts doubt on the veracity and reliability of the prosecution evidence. Furthermore, the case has been registered under section 406, P.P.C. with the allegation that the petitioners had allegedly committed criminal breach of trust. Perusal of the evidentiary material produced before the Court reveals that there is no evidence to substantiate such allegation that they had committed an offence made punishable under section 406, P.P.C.. Mere mentioning of word "Amanat" in the FIR would not be sufficient to constitute an offence under section 406, P.P.C. when the narrative of the FIR is suggestive of the nature that the money had been handed over to the petitioners allegedly for their own use as a loan and entrusted to them. The use of the word "Amanat" in the FIR has also laid bare the mala fide of the complainant as well as the police as by merely mentioning the word 'Amanat' (trust), in the contents of the FIR would not attract the provisions of Section 405 of P.P.C. made punishable under Section 406 of P.P.C., when otherwise ingredients of the said offence are not attracted from the contents of the FIR. Reliance is placed on the case of Miraj Khan v. Gull Ahmad and 3 others (2000 SCMR 122) wherein it has been held as under:- It is admitted in the FIR which is based on the written application of the complainant that the disputed amount was given as "Qarze-Hasna ". It is obvious that the addition of word "Amanat" with "Qarze-Hasna" is ridiculous and appears to have been added so as to justify the registration of the criminal case Investigation of the case is complete. Version of the complainant as well as petitioners has already been verified by the Investigating Officer. Learned counsel for the complainant has vehemently argued that the recovery is to be effected from the petitioners. No specific denomination, identification marks or number of the currency notes, which were handed over by the complainant to the petitioners, have been mentioned in the FIR therefore, this petition cannot be dismissed merely on the ground of possible recovery of the amount of the complainant from the petitioners. Reliance in this respect may be placed on the case of "Shahid Imran v. The State and others" (2011 SCMR 1614). In view of these physiognomies of the case the assertion of the learned counsel for the petitioners that the case against the petitioners is based on mala fide and ulterior motive is an assertion which cannot be said to be without foundation or substance at this stage. Sending the petitioners behind the bars at this stage would cause irreparable loss to their reputation.

6. In view of the above discussion, both the petitions in hand are accepted and ad-interim pre-arrest bail already granted to the petitioner namely Tahir Hussain, vide order dated 02.07.2019, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.100,000/- (Rupees One Lac Only) with one surety in the like amount to the satisfaction of learned trial court. Similarly petition Crl. Misc. No.1927-B of 2019 is also accepted and ad-interim pre-arrest bail already granted to the petitioners, namely Rehmat Ali and Barkat Ali, vide order dated 02.07.2019, is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 100,000/- (Rupees One Lac Only) each with one surety in the like amount each to the satisfaction of learned trial court.

7. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court in any manner. SA/T-15/L Bail confirmed.