2025 PLP 1374 (MLD)

Malik Javaid Iqbal Wains, J.

By filing this petition under Section 498 Cr.P.C, the petitioner, Danish Riaz Dar, seeks pre-arrest bail in case FIR No.249, registered on 03.03.2025 under Section 408 P.P.C at Police Station RA Bazar, District Rawalpindi.

2. The allegation against the petitioner, as per the contents of the First Information Report, is that he, being employed at Daar Electronics and assigned the duty to recover instalments from customers, committed criminal breach of trust by misappropriating a large sum of collected instalments. It was further alleged that the petitioner received an amount from the complainant as credit but failed to return the same. Hence, this case.

3. Arguments heard. Record perused.

4. Perusal of the crime report reveals that no details of the customers from whom the instalments were allegedly received by the petitioner have been provided, nor have any specific date, time, or place of the alleged entrustment of the amount been mentioned in the FIR. The concept of trust envisages that one person (the settlor), while relying on another (the trustee) and reposing special confidence in him, entrusts property or assets to him. There is a fiduciary relationship between the two in law. In this context, Section 405 P.P.C defines criminal breach of trust as follows: "

405. Criminal breach of trust.- 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 prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust." The necessary ingredients of criminal breach of trust under the above provision are, (i) the accused must be entrusted with property or dominion over it, and (ii) he must have dishonestly misappropriated the property or converted it to his own use, or disposed of it in violation of the trust. The general punishment is provided under Section 406 P.P.C, whereas aggravated forms of the offence are addressed under Sections 407 to 409 P.P.C.

5. The first condition under Section 405 P.P.C involves three key elements, entrustment, dominion, and property. "Entrustment" refers to the transfer of possession for a specific purpose without conferring ownership. "Dominion" implies control or authority over the property. The term "property" is used broadly and should not be confined to movable assets alone. However, the presence of "entrustment" and "dominion" must be assessed in the context of the relationship between the parties and the nature of the property allegedly misappropriated. Notably, a breach of trust can only occur if the property belongs to someone other than the accused.

6. The ingredients necessary to constitute an offence under Section 408 P.P.C are not reflected in the contents of the crime report. A master-servant relationship between the complainant and the petitioner, and the question of whether any entrustment of property actually took place, are factual issues that can only be determined after recording of evidence during the trial. This becomes particularly relevant in light of FIR No.768/2022, dated 17.11.2022, registered under Section 489-F P.P.C against someone else, wherein it was asserted that the petitioner had partnership with the complainant in the Daar electronics. In these circumstances, the petitioner's case clearly falls within the ambit of further inquiry.

7. The offence under Section 408 P.P.C carries a maximum punishment of seven years, which does not fall within the prohibitory clause of Section 497 Cr.P.C. Prima facie, it appears that rather than pursuing a civil proceedings for rendition of accounts, the complainant has sought to give a criminal colour to what essentially seems to be a civil and contractual dispute.

8. The petitioner has already joined the investigation. The possibility that the complainant's allegation is tainted with mala fide intent and ulterior motive cannot be ruled out.

9. 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. In the present case, considering the nature of allegations, the absence of clear evidence of entrustment, lack of employment details, and the apparent civil nature of the dispute, the petitioner has successfully made a prima facie case of mala fide on the part of the complainant.

10. 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), Khalil Ahmed Soomro v. The State (PLD 2017 SC 730), and Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380).

11. It is not the object of the law to unnecessarily restrain the liberty of a person where no useful purpose would be served by his arrest and detention. In view of the legal principles laid down by the superior courts regarding confirmation of pre-arrest bail, the petitioner has made out a case for exercise of such discretion in his favour.

12. Based on a tentative assessment of the material presently available on record, 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 a consistent line of judgments including Salman Mushtaq v. The State (2024 SCMR 14), Ahtisham Ali v. The State (2023 SCMR 975), Fahad Hussain v. The State (2023 SCMR 364), Gulshan Ali Solangi v. The State (2020 SCMR 249), Muhammad Sadiq v. The State (2015 SCMR 1394) and Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), wherein the Hon'ble Supreme Court of Pakistan confirmed pre-arrest bail in view of tentative assessment indicating the need for further investigation. Reference in support is also made to the judgment reported as Saeed Ahmed and another v. The State (PLD 2024 SC 1241).

13. 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.

14. 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. JK/D-5/L Petition allowed.