2024 PLP 1484 (MLD)

Sardar Muhammad Sarfraz Dogar, J.

Through this petition, the petitioners seek pre-arrest bail in case FIR No.238/2023, dated 17.05.2023 lodged under Section 406, P.P.C. at Police Station Bait Meer Hazar District Muzaffargarh on the ground that the allegations levelled by the complainant are based upon mala fide; that no tangible incriminating evidence whatsoever is available against the petitioners to connect them with the alleged crime.

2. Precisely, as per the story of prosecution, 5/6 years prior to registration of the case FIR, the petitioners obtained three cows and one he-buffalo valuing Rs.5,50,000/- on share basis but later on they misappropriated the said animals and refused to give the respective share of the complainant.

3. Heard. Record perused.

4. Contents of FIR transpires that the alleged occurrence was took place about five to six years ago, whereas, the crime report/FIR was got registered on 17.05.2023, after considerable delay without explaining any sufficient reason, therefore, chances of petitioners' false implication with due deliberation after consultation cannot be ruled out. Reliance can be made upon case law titled as "Shakeel Ahmad v. The State and another" (2012 MLD 1492), "Tahir Hussain v. The State and other" (2020 YLR 576) and "Khair Muhammad and another v. The State through PG Punjab and another" (2021 SCMR 130).

5. After going through the narration of FIR and evidentiary material collected by the police and presented before this court, I have noticed that from the facts and circumstances of the case, offence under section 406, P.P.C. is hardly attracted because there is no evidence on file that the animals were obtained by the petitioners from the complainant as on trust rather the complainant himself admitted in the FIR that the same was given to the petitioners for the purpose of obtaining his share. To better appreciate the controversy in dispute, it would be appropriate to have a glance over section 405, P.P.C., which is hereby reproduced for facilitation as under:- "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 use 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"

6. In the light of supra mentioned reproduced penal provision, it manifests that to attract the offence of criminal breach of trust punishable under section 406, P.P.C., the essential ingredients are:- i. There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted. ii. The person in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted. iii. 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. iv. Dishonestly uses or disposes of that property in violation of any legal contract, express or implied which he has made touching the discharge of such trust.

7. I have noted that in the narration of FIR, it has been mentioned that the animals were given to the petitioners on the sole ground that the petitioners would gave/return respective shares to the complainant after due period, for which, the complainant, after due time, demanded his share, the same was allegedly not given to him. It has been well settled by now that mere broken promises or business terms do not constitute the offence under section 406, P.P.C. I respectfully place reliance on the case of "Shahid Imran v. The State and others" (2011 SCMR 1614), wherein the Hon'ble Supreme Court of Pakistan, has observed as under:- "According to the prosecution a sum of Rs. 30,00,000 had fraudulently been obtained by the petitioner from the complainant on the pretext that the petitioner wanted to set up a school of which the complainant, a retired headmaster, was to be appointed as its principal and for the said purpose the complainant was to invest a sum of Rs.30,00,

000. It has been alleged in the FIR that after obtaining that amount from the complainant the petitioner had neither set up any school nor had returned the above mentioned sum of money to the complainant and he had instead threatened the complainant with dire consequences. A perusal of the FIR registered in this case clearly shows that the complainant had given the above mentioned sum of money to the petitioner by way of an investment in a business venture and not by way of entrustment. The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or property is to be retained and preserved for its return to the giver and the same is never meant to be utilized for any other purpose. Recognition of this distinction stands clearly reflected in many cases decided by different courts in the Indo-Pak sub-continent and a reference in this respect may be to the cases of State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700), Punjab National Bank and others v. Surendra Prasad Sinha (1994 PSC (Crl) 768), Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900), Ghulam Ali v. Javid and another (1989 PCr.LJ 507), Nga Po Seik v. Emperor (1917 Indian Cases 824) and Kornai Lal Dutta v. The State (AIR 1951 Cal 206). These precedent cases clearly show that a mere breach of a promise, agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in section 405, P.P.C. and such a breach is not synonymous with criminal breach of trust without there being a clear element of entrustment therein which entrustment has been violated. Looked at from this perspective the allegation levelled against the petitioner regarding commission of an offence under section 406, P.P.C. surely calls for further probe at this stage."

8. On Court's query, learned Law Officer has frankly conceded that according to the facts and circumstances of the case, offence under section 406, P.P.C. is not made out.

9. Learned counsel for the complainant has argued with vehemence that the petitioners has failed to point out any mala fide or ulterior motive on the part of the complainant as well as police which are sine qua non for the confirmation of pre-arrest bail and these grounds are very much lacking in this case. I am not in agreement with the supra mentioned submission because it is not possible in every case to prove the same, however, these grounds can be gathered from the facts and circumstances of the case. A reference in this respect may be made to the case of "Shahzada Qaiser Arfat alias Qaiser v. The State and another" (PLD 2021 SC 708) wherein it has been observed as under:- "Mala fide being a state of mind could not always be proved through direct evidence, and it was often to be inferred from the facts and circumstances of the case."

10. Although, it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are all altogether different but in a recent pronouncement of apex court of the Country in case titled as "Khair Muhammad and another v. The State through P.G.Punjab and another" (2021 SCMR 130) it has been held that while granting pre-arrest bail even the merits of the case can be touched upon. The relevant portion of the esteemed judgment of the apex Court of the Country is reproduced as under:- " the concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon ." Similar view has been reiterated by the apex Court of the Country in the case titled as "Sajid Hussain alias Joji v. The State" (PLD 2021 SC 898).

11. The petitioners are previous non-convict, they have already joined the investigation and according to the investigating officer, the investigation of this case is complete and reportedly there is no misuse of concession of pre-arrest bail, therefore, the petitioners have made out a case for confirmation of pre-arrest bail. Even otherwise, offence under section 406, P.P.C. does not fall within the prohibitory clause of section 497 Cr.P.C and no useful purpose would be served by sending them behind the bars at the wish of complainant for an indefinite period.

12. The epitome of above discussion is that there are sufficient grounds for the confirmation of the pre-arrest bail, resultantly, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioners vide order dated 20.10.2023 is hereby confirmed subject to their furnishing of fresh bail bonds in the sum of Rs.100,000/- each with one surety each in the like amount to the satisfaction of the learned trial court.

13. 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. JK/G-7/L Bail confirmed.