2014 P Cr (PLP)

SHAHID BILAL HASSAN, J.

Being booked in case bearing F.I.R. No.297 of 2013, dated 15-5-2013, registered under section 406 of P.P.C. at Police Station B-Division, District Bahawalnagar on the complaint of Haji Muhammad Iqbal Saeed, the petitioner Khayyam Bilal son of Wali Muhammad implores for grant of pre-arrest bail in the said case, after having been declined by learned Additional Sessions Judge, Bahawalnagar vide order dated 28-5-2013.

2. The precise allegation as pervaded in the crime report lodged by the complainant is as such that complainant and petitioner were having business relation inter se, pursuant to said relation the distribution of Naimat Banaspati Ghee was handed over to the petitioner and this bargain remained in progress until and unless the petitioner delayed in making payments; an amount of Rs.19,72,000 was outstanding against the petitioner, which was demanded, but he (petitioner) shilly shallied, but on moral pressure paid Rs.500,000 on 26-1-2012 and had promised to pay the remaining Rs.14,15,918 after one year in presence of the witnesses, but ultimately refused; hence, he committed breach of trust.

3. The learned counsel for the petitioner inter alia maintains that the petitioner is innocent and has falsely been involved in this case with mala fide intention; that actually no occurrence as narrated in the F.I.R. has ever taken place nor has the petitioner obtained any distribution of Ghee, rather he deals in tobacco business; that if for the purpose of arguments the contents of the complaint are admitted to be true, even then it is a matter of rendition of accounts which is purely civil in nature; that there is delay of one year and four months in lodging of F.I.R. without any plausible justification; that the offence does not come within the ambit of prohibitory clause of section 497 of the Cr.P.C. Relies on Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900-Lahore), Shahid Imran v. The State and others (2011 SCMR 1614) and Ghulam Ali v. The State and another (2013 MLD 891-Lahore).

4. The learned Deputy Prosecutor-General assisted by the learned counsel for the complainant strongly opposed the bail application and argued that the petitioner is specifically nominated in the F.I.R.; that he committed breach of trust by not returning the amount of the Ghee supplied to him for distribution purposes, which is still outstanding against the petitioner; that no mala fide, ill-will or ulterior motive has been agitated or brought on record against the complainant or the police for false involvement of the petitioner in this case, which are pre-requisites in seeking extraordinary relief of pre-arrest bail. The petitioner has been declared guilty by the police during the investigation. Therefore, he is not entitled to the concession of extraordinary concession of pre-arrest bail. Relies on Muhammad Rizwan v. The State (2008 YLR 2169), Shakeel Ahmad v. The State and another (2012 MLD 732), Kh. Zahid Ahmad and others v. The State (2010 YLR 526) and Khalil Ahmed v. The State and another (2013 PCr.LJ 389).

5. I have heard the learned counsel for the parties as well as learned D.P.G. and perused the record carefully.

6. After hearing the arguments of both the sides and perusing the record carefully, it has become diaphanous that the matter in hand, ex facie, seems to be of civil nature, as it is evident from the contents of the F.I.R. that petitioner has allegedly returned a portion of amount i.e. Rs.500,000 to the complainant and the learned trial Court would decide about the application of section 406 of P.P.C. according to the facts and circumstances of the case after recording evidence. The petitioner has joined the investigation. Moreover, there are two versions: one put-forth by the complainant and the other by the petitioner. At this stage, deeper appreciation of the evidence is not warranted and it is the learned trial Court to decide or pass any verdict that which version is correct and same requires evidence. Admittedly, the complainant never ever gave any amount to the petitioner, rather there was a business bargain of Ghee inter se the complainant and the petitioner for distribution purposes, obviously based on profit, which matter is, prima facie, of civil nature and the present case seems an attempt to exert pressure upon the petitioner to gain benefits. In this regard guideline can be sought from the case of Shahid Imran v. The State, etc. (2011 SCMR 1614), wherein it has been invariably held by the Apex Court that, "

Money given by complainant to accused for investment in business venture would not constitute entrustment within meaning of S. 406, P.P.C. Additional Sessions Judge would rightly admit accused to pre-arrest bail in such case. High Court would act illegally by cancelling bail of accused without considering that considerations for grant of bail and its cancellation are quite different. Supreme Court converting leave petition against order of High Court into appeal, allowing appeal and admitting accused to pre-arrest bail." Even in case of Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900-Lahore) it has been observed that, "Complainant had given money to accused/petitioner for purpose of doing business an giving profit to complainant therefrom.

On failure of accused to return money/profit to complainant, the latter lodged F.I.R. against accused

Validity

Offence of criminal breach of trust defined under S.405, P.P.C. punishable under S.406, P.P.C. was to be committed if property (money) was given on trust and same property was not returned

If a person gave money to other for purpose of investment in business and equivalent amount of money along with profit was to be returned by the latter then such business transaction was not to attract provision of Ss.405 & 406 of P.P.C.

Such transaction was not of entrustment of property but simply one of investment of property

No date, time or place of criminal intimidation by accused was given in F.I.R.

No relevant details of criminal intimidation were brought on record of investigation

No one could be prosecuted on the basis of vague and unspecified allegations

Trial Court, in case of submission of challan, would not be in a position to frame charge against accused

Complainant had tried to convert a civil and business dispute into a criminal case in order to extract concession of civil matter

F.I.R. was quashed." Same view has been reiterated by this Court in case of Ghulam Ali v. The State and another (2013 MLD 891-Lahore). The case law rendered by learned counsel for the complainant, with utmost respect, is distinguishable and does not apply to the facts and circumstances of the instant case, as each and every case has its peculiar facts and circumstances and the Court has to evaluate the same in judicious manner, independently.

7. In view of the above said circumstances, by placing reliance on the judgments (Supra), the application in hand is accepted and the ad interim pre arrest bail already granted to the petitioner vide order dated 3-6-2013 is confirmed subject to his furnishing of bail bonds in the sum of Rs.100,000 (one hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.

8. Before parting with this order, it is clarified that the findings given in this order are tentative in nature and it will have no effect upon the merits of the case in any manner whatsoever. MH/K-37/L Bail allowed.