2007L1240 (PLP)

TARIQ SHAMIM, J.

Through this petition, the petitioner seeks cancellation of bail allowed to respondent No.1 in case F.I.R. No.507 of 2006 dated 15-8-2006 for offence under section 406 P.P.C., registered at Police Station Race Course, Lahore by the learned Additional Sessions Judge, Lahore vide order dated 26-8-2007.

2. The brief facts of the case are that the petitioner, who is the Chief Executive of Civic Corporation, in the presence of his managers Nadeem and Arshad made an oral agreement in Chamber of Commerce with Seuk Gook Kim-respondent No.1, a Korean resident and owner of GNC Company having its office at 59-Cavalary Ground, Lahore Cantt, for supply of lumps of salt. The petitioner supplied the order to TIG Company in Korea of value of U.S. $ 24368. Respondent No.1 made payment to the tune of U.S.$ 12174 to the petitioner but despite hectic efforts the remaining amount was not paid, whereupon the aforementioned F.I.R. was lodged.

3. The learned counsel for the petitioner contended that by allowing pre- arrest-bail to respondent No.1 the learned. Additional Sessions Judge had deprived the prosecution of any chance of recovery of the outstanding amount due from the said respondent to the petitioner-complainant; that the contents of the F.I.R. disclosed criminal breach of trust which was a non-bailable offence and that the impugned order was contrary to law inasmuch as the said respondent had tailed to disclose any mala fide intent of the complainant for his false implication in the case which had not been considered by the learned Additional Session Judge.

4. The Learned Deputy Prosecutor General although adopted the arguments advanced by the learned counsel for the petitioner, however, candidly conceded that during investigation the police had found that the entire amount in question had been received by the petitioner. The learned counsel representing respondent No.1 contended that the order of the learned Additional Sessions Judge was in consonance with law as the petitioner had failed to show entrustment of property as envisaged under section 405 P.P.C.; that during investigation the documents produced before the police revealed that on the basis of the agreement dated 2-5-2005 the entire amount in question had been received by the petitioner and, therefore, he had no grievance; that challan in the case had been submitted in the Court and the case was now fixed for framing of charge on 15-9-2007 and that the offence which respondent No. 1 was charged did not entail sentence of 10 years or more, therefore, the petition was liable to be dismissed.

5. I have heard the learned counsel for the parties and gone through the record.

6. A copy of the e-mail dated 30th of April, 2005 dispatched by TIG from Korea to the petitioner's company has been produced by the learned counsel representing respondent No.1 which reveals that the said Company was willing to .make payment of the balance amount to the petitioner directly if the petitioner and respondent No. 1 executed an agreement to the said effect. Consequent thereto agreement dated 2-5-2005 was centered into by the complainant and respondent No.1 stipulating that TIG Korea shall directly pay the amount in question to the petitioner's Company and respondent No.1's Company, namely, GNC would no longer be liable for the payment of the amount. The learned counsel in furtherance of his arguments has placed on file a copy of commercial data sheet which reveals that the amount in question has been paid by TIG Korea to the petitioner pursuant to the said agreement. This fact is further supported by the opinion of the police recorded in Zimni No.20 dated 11-1-2007 wherein it has been stated that the entire amount due from respondent No.1 had been paid by TIG Korea to the complainant. When confronted with the agreement and other documents produced by the learned counsel for respondent .No.1 during the course of his agreements, the learned .counsel for the petitioner had no answer. However, without disputing the execution of the said agreement or contents thereof he had stated that the agreement was bad in law inasmuch as the same did not bear the signatures of any witness. Further, the learned counsel contended that the opinion, if any formed by the police, was of no relevance and the same was not binding on the Court.

7. The question as to whether the agreement dated 2-5-2005 constitutes a valid and a binding document between the parties can only be answered at the trial after recording of evidence. Prima facie it appears that the amount in question has C been received by the petitioner for the goods supplied through respotidenf-No.1. Further, I agree with the observation made by the learned Additional Sessions Judge in the impugned order that the element of entrustment is missing from the case which is an essential ingredient to attract the provisions of the section 406 P.P.C.

8. The opinion of the police is although not binding on the Court, yet being adverse to the prosecution puts the Court on enquiry as to the veracity of the prosecution ease, thereof, the same has to be given sufficient weight unless it cats be shown that the same smacks of mala fide. Although the learned counsel for the petitioner in rebuttal contended that the investigation conducted by the police was mala fide and not transparent nevertheless, the fact remains that the petitioner at no point of time had challenged the said investigation. The material on the basis of which opinion has been framed by the police is tangible and appears to be credible. It would be pertinent to mention that the police is the first agency which comes into contact with the aggrieved party and the accused party during investigation and, therefore, the impression gathered by the police in the course thereof carries importance and cannot be ignored or lightly brushed aside by the Court.

9. The argument that the respondent had failed to disclose any mala fide intent on the part of the petitioner for his false implication in the case is devoid of any force inasmuch as the documents referred to by the learned counsel for respondent No.1 prima facie reflect payment of the disputed amount to the petitioner who for 6 some ulterior motive is still insisting of payment thereof.

10. Once a Court in exercise of its discretion extends the concession of bail to an accused the same can only be cancelled if the bail has been allowed on artificial grounds or the bail granting order is either whimsical or perverse. No such impending circumstance has been brought to notice of the Court by the learned counsel representing the petitioner. The Honorable Supreme Court in the case of Mian Dad v. State and another (1992 SCMR 1286) has observed that the discretion left in Court under section 491(5) Cr.P.C. while deciding an applies to setting for cancellation of bail is akin with the principle which applies to setting aside an order of acquittal. In another case the Honorable Supreme Court has observed that only a foolish or perverse order of the trial Court could be interfered with in an appeal against acquittal. By applying the same analogy, it can be safely asserted that a bail granting order, liable for interference by this Court, would have to be either perverse, arbitrary, fanciful, whimsical or foolish. It is therefore, evident that exceptional circumstances would be required for this Court to interfere in a bail granting order validly passed by a Court of competent jurisdiction. The impugned order is well reasoned and the conclusion drawn by the learned lower Court do not appear to be whimsical or illogical. Even otherwise the provisions of section 497(5) Cr.P.C. are not punitive in nature and there is no legal compulsion for the Court to cancel the bail once validly allowed. Moreover, challan in the case has been submitted and copies of the statements of the witnesses recorded under section 161 Cr.P.C. have been supplied to the accused. The case is now fixed for framing of charge on 15-9-2007. In such a situation this Court has always been reluctant to cancel the bail allowed to the accused.

11. For what has boon discussed above. I find no merit in this petition which is accordingly dismissed. H.B.T./M-439/L Petition dismissed.