Criminal breach of trust

Ex-facie from the contents of the FIR it was revealed that the matter pertained to business transaction and the elements of entrustment as well as misappropriation being pre-requisites for attraction of S.406, P.P.C, were missing in the present case

Although, it was a pre-arrest bail application and merits for grant of bail before arrest and after arrest are altogether different but while granting pre-arrest bail even the merits of the case can be touched upon

Thus, sending the petitioner behind bars would cause irreparable loss to his reputation and would serve no useful purpose

Hence, the case of the petitioner squarely fell within the ambit of subsection (2) of S.497 of Code of Criminal Procedure, 1898, calling for further inquiry into his guilt

Ad-interim pre-arrest bail already granted to the petitioner was confirmed

Bail petition was allowed, in circumstances.

In a pre-arrest bail, only a tentative assessment of the evidentiary material produced before the Court is to be made at bail stage

Based on a tentative assessment of the record, it evinced that there was an inordinate delay in lodging of FIR

Such delay shattered the sanctity of the crime report and reflected that the same was consumed in fabricating, deliberating, consulting and concocting a false story

The question of constituting the offence of criminal breach of trust under S.406, P.P.C, in the light of the dispute, would be determined by the Trial Court after recording the evidence

Ad-interim pre-arrest bail already granted to the petitioner was confirmed

Bail petition was allowed, in circumstances.

Accused persons were public servants who were alleged to have issued illegal Computerized National Identity Cards and passports to foreign nations at place "Q"

Case was investigated at place "I" and Special Court at place "I" had also assumed the jurisdiction

Validity

Offence of "criminal breach of trust" can be tried by the Court within whose local limits of jurisdiction the offence is committed by a public servant as well as the Court where any part of the property which is the subject of the offence is received or retained by accused persons

Offence of "criminal breach of trust" allegedly committed by accused persons as public servants occurred in another province, whereas there was no allegation that the accused persons received or retained in place "I" any part of the property which was subject of alleged offence

Special Judge at place "I" could not try accused persons for the offence under S.409, P.P.C. unless he could try them for any of the other alleged offences by virtue of S.5 (7) of Pakistan Criminal Law (Amendment) Act, 1958

Special Judge at place "I" did not have territorial jurisdiction to try the case registered against accused persons

High Court set aside the orders passed by Special Judge and applications filed under S.4 of Pakistan Criminal Law (Amendment) Act, 1958 read with S.177, Cr.P.C. were allowed

High Court directed the Special Judge to return FIRs and challans submitted by FIA to the prosecution or concerned investigating officer for the purpose of submission before Court of competent jurisdiction

Revision was allowed in circumstances.

Term 'entrustment' was used in a broad sense under Section 405 P.P.C and therefore, it encompassed a wide variety of contexts in which a property was handed over by an owner to a recipient person as trust (amanat)

An entrustment could arise in any situation wherein property had been entrusted in the manner leading to the creation of a fiduciary relationship between the giver and recipient of the entrusted property

Mere failure to pay profits, or a breach of promise, agreement or contract in the absence of clear entrustment of property, do not attract criminal breach of trust

Contents of the FIR clearly stated that all the vehicles in question were given by the complainant to the petitioner in pursuance of successive business transactions

Complainant not only settled the price of the vehicles with the petitioner but also received partial payments in lieu of the said transactions

In such eventuality, it was quite clear that there was no entrustment of the vehicles as trust (amanat) to the petitioner by the complainant

In absence of any such entrustment, offence under Section 405 P.P.C, was not made out and resultantly, Section 406 P.P.C was not applicable in the present case

Contention of the complainant that the FIR explicitly stated the vehicles were given as a trust (amanat) was of no avail

Mere mentioning of the word 'trust' in the FIR did not per se establish criminal breach of trust, and the said offence could only be made out when the requisite elements of the offence stood fulfilled

View taken by the High Court in the impugned order that the petitioner could not be granted bail because he was nominated in three other FIRs was misplaced, because only previous conviction could furnish a ground for refusal of bail

None of the vehicles in question had been recovered from the petitioner

Complainant lodged FIR after a considerable delay of five months, without any explanation

Due to such reasons, case of petitioner also called for further inquiry, falling under subsection (2) of Section 497 Cr.P.C., thus the petitioner was also entitled for bail after-arrest on such ground

Offences did not fall within the prohibitory clause of Section 497(1) Cr.P.C., and in such cases, bail must be granted as a rule and refused only in exceptional circumstances

Petition for bail was allowed in circumstances.

Allegations against the accused-respondents were that they dishonestly misappropriated an amount of Rs. 40 lac obtained by them from petitioner as loan

Petitioner lodged FIR under S. 406 P.P.C

High Court quashed the said FIR in its writ jurisdiction

Validity

Loan did not qualify as an entrustment

Where entrustment was made a fiduciary relationship arose between the giver and recipient, and the specific property entrusted was expected to be returned in its original form to the giver

However, such elements were absent in a loan where the relationship between the lender and borrower was purely contractual and there was no expectation of return of the same exact property, but rather something of the same value was returned

Even otherwise, there was a gross contradiction in the contents of the FIR, wherein it was first claimed that the amount was given as a loan but then it was alleged that the property was given as a trust

Thus, it appeared that the term 'Amanat' had been employed merely as a tool to attract the application of S. 406 P.P.C. and to secure the registration of FIR against the respondents

Additionally, no documentary evidence was available on the record which proved or showed that the petitioner gave the amount of Rs. 40,00,000/- (rupees forty lac only) to the respondents and the same had been noted by the High Court

Necessary implication of such legal interpretation, factual inconsistencies in FIR and non-availability of any documentary proof was that the offence punishable under S. 406 P.P.C was not made out from the contents of the quashed FIR

Thus, the decision of High Court to quash the FIR was in accordance with law

Consequently, leave to appeal was declined and petition was dismissed accordingly.

Words "due consideration to such submission" have strong connotation that Court cannot simply ignore it rather while disagreeing with opinion of prosecutor, it has to give reasons

Administrative opinion or opinion in official capacity does not bind Court to give reasons for disagreement rather it is regulated by discretion of Court to consider it or not consider it

In the present case Trial Court had thought it appropriate not to consider it which could not be termed as an illegality

High Court declined to interfere in order passed by Trial Court as the same was perfect

Petitioner was not non-suited rather had an alternate efficacious remedy of filing of private complaint

Constitutional petition was dismissed, in circumstances.

As per contents of the FIR, complainant and another person were involved in sale and purchase of fruit for the last several months; that petitioner/accused in the presence of witnesses had been taking fruit for supply and after collecting amount deposited the same with the complainant, however, he misappropriated fruit commodity and money

Perusal of the FIR revealed that petitioner was not purchasing fruit from the complainant rather was supplying the fruit of complainant to different persons and after supply of the same obtained money from concerned persons and gave said amount of fruit to the complainant party and in such way petitioner was acting as carrier and as per crime report (FIR ) he being carrier committed misappropriation of fruit commodity and money

As per illustration (f) of S.406, P.P.C, if a carrier was entrusted with property to be carried by land or water and he misappropriated property then he had committed criminal breach of trust, therefore, ingredients of the alleged offence were completed as per contents of the FIR and contention of the petitioner that it was a business transaction which did not attract alleged offence was without any force and was thus repelled

Quashing of FIR was an extraordinary relief which could only be granted if the FIR did not disclose the commission of any offence or there was any jurisdictional defect in the registration of the case

Court always avoids to quash the FIR merely by appreciation of oral or documentary versions of the parties without providing chance to cross-examine or confront the same

First Information Report (FIR) could not be quashed merely on the plea that same was false and concocted

So far as the allegation of mala fide of the complainant, if any, was concerned, it went without saying that same was a question of fact, which required proof by producing evidence without which the same could not be resolved and admittedly said exercise could not be done under Constitutional jurisdiction of the High Court

Petitioner being accused had remedy before the investigating agency for proving his version and even when interim report prepared under S.173, Cr.P.C., in the case had been sent to the Court, the petitioner had adequate remedy before the Trial Court to move application under S.249-A, Cr.P.C.

Petition was dismissed, accordingly.

Allegations against the petitioner-accused were that he purchased stainless steel sheets from complainant on different occasions as a trust and stated that said goods were lying with him as trust and he would return the said goods after some time, or price of the same, but failed to do so

In the case in hand accused/petitioner allegedly purchased goods as business dealer from complainant and others, who were doing the said business and nothing was entrusted to him

If petitioner/accused failed to make payment to complainant and others, that might give rise only to civil liability

Mere mention of the words "that goods purchased by accused/petitioner were lying as trust with him" in the FIR was not sufficient to change the character of transaction

Even if it was presumed that petitioner purchased goods from said persons as a result of some mis-representation/deception/dishonest inducement, or playing mischief, at the most ingredients of offence of cheating elaborated in S.415 of P.P.C would be attracted, for which penalty had been provided under S.420,P.P.C., which was although of imprisonment extending upto seven years, but was shown to be bailable in the second schedule appended with Cr.P.C

Hence, the petitioner had succeeded in making a good case for his enlargement on bail

Petitioner was behind the bars ever since his arrest on 25.01.2025

Person of petitioner was no more required, therefore, bail petition was allowed, in circumstances.

As per story of prosecution, 5/6 years prior to registration of the case FIR, the petitioners obtained three cows and one buffalo valued at 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

Contents of FIR transpired that the alleged occurrence took place about 5/6 years ago, whereas the crime report/FIR was registered after considerable delay without explaining any sufficient reason, therefore, chances of petitioners' false implication with due deliberation after consultation could not be ruled out

From the facts and circumstances of the case, offence under S.406 P.P.C was hardly attracted because there was no evidence on file that the animals were obtained by the petitioners from the complainant 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

In the narration of FIR, it had been mentioned that the animals were given to the petitioners on the sole ground that the petitioners would give/return respective shares to the complainant after due period, for which, the complainant, after due time, demanded his share, but the same was allegedly not given to him

Mere broken promises or business terms do not constitute the offence under S.406, P.P.C

Petitioners were previous non-convict, they had already joined the investigation and according to the Investigating Officer, the investigation of the case was complete and reportedly there was no misuse of concession of pre-arrest bail

Petitioners had made out a case for confirmation of pre-arrest bail

Offence under S.406, P.P.C, did not fall within the prohibitory clause of S.497 Cr.P.C

No useful purpose would be served by sending the petitioners behind the bars at the wish of complainant for an indefinite period

Petition was allowed and the ad-interim pre-arrest bail already granted to the petitioners was confirmed, in circumstances.

Contents of FIR transpired that the alleged amount of Rs.1,78,80,000/- from 21.05.2020 to 3.12.2020 was given to the accused-petitioner, whereas, the crime report/FIR was got registered on 18.09.2021, after a delay of one year and fifteen days without explaining any sufficient reason, therefore, for the said reason, chances of petitioner's false implication with due deliberation after consultation could not be ruled out

From the facts and circumstances of the case, offence under S. 406, P.P.C was hardly attracted because there was no evidence on file that an amount of Rs.1,78,80,000/- was entrusted to the petitioner

As per narration of FIR, complainant handed over amount to the petitioner for the purchase of land for a property in her name but the petitioner neither purchased the land in the name of complainant nor returned her amount

Mere broken promise did not constitute the offence under S.406, P.P.C

Petitioner was appointed as Corporate Consultant, Training and Development in the company of complainant with monthly salary of Rs.900,000/- on 15.01.2018 and his service was confirmed on 18.06.2018

Allegedly, an amount of Rs.78,80,000/- was transferred in the account of petitioner through bank transaction as the same was paid as salary to the petitioner

Petitioner also annexed with present petition six salary slips through an application which manifested that Rs. 51,00,000/- was paid to the petitioner as salary

Complainant had not produced any proof of handing over the cash amount of Rs.10,000,000/- to the petitioner and investigation in that regard was also silent

Moreover, it was observed that matter between the parties was of family dispute because Nikah of complainant's brother was solemnized with daughter of the petitioner on 20.12.2020 and an amount of Rs. 51,00,000/- was fixed as Haq-ul-Mehr out of which, Rs. 50,00,000/- was deferred dower

Similarly in the column No.17 of NikahNama gold ornaments weighing 34 tolas valuing Rs.42,00,000/- were also given to the bride

As per FIR before the Nikah, from the amount of complainant's brother, a house was purchased and half portion of said house was transferred in the name of petitioner's daughter

Subsequently, dispute arose between the complainant's brother and petitioner's daughter and family suits were pending adjudication between them

Till the dispute between complainant's brother and petitioner's daughter, arose, the complainant had not tried to set the machinery of law into motion

Thus the complainant had apparently tingled a family dispute into criminal one which was not warranted by law

Petitioner was previous non-convict, he had already joined the investigation and according to the Investigating Officer, the investigation of the case was complete and reportedly there was no misuse of concession of pre-arrest bail, therefore, the petitioner had made out a case for confirmation of pre-arrest bail

Even otherwise, offence under S.406, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C., and no useful purpose would be served by sending him behind the bars mere at the wish of the complainant till his release on post-arrest bail after few days

Petition was allowed and the ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Allegation levelled in the FIR was that the complainant entrusted machinery worth Rs. 14,000,000/- to the accused and his father, which they misappropriated

Accused purchased a stone crushing plant and entered into a partnership with the complainant to run it

Complainant operated it for 19 months and incurred huge losses

Accused persons then took over and operated it for four months but could not give better results

Accused persons leased it out to third party which left after four months

Once again the accused persons took the charge of the crusher and got it repaired and upgraded

Both the sides blamed each other for the losses

Complainant filed a suit for rendition of accounts against accused persons and during the proceedings the parties referred the matter to an arbitrator for arbitration, who later delivered his award and accused had filed an application in the Civil Court for making it rule of court

Element of entrustment contemplated by S. 405, P.P.C. was conspicuously missing in the instant case

There was essentially a dispute between the partners regarding handling of the business and its earnings

Hence, S. 405, P.P.C. was not attracted

Moreover, it was also debatable whether it could be invoked even against second accused because he was working as a proxy for his father/accused and not on his own account, who was abroad

Thus, it appeared that the complainant had lodged the FIR to mount pressure on the other side

Bail petition was accepted and ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.

Words 'fraudulent' and 'entrustment' are missing in the definition of 'dishonest misappropriation of property' provided in S. 403, P.P.C.

Offence under S. 5(1)(c) of Prevention of Corruption Act, 1947, deals with 'any property' while offence under S. 403, P.P.C. is confined to 'moveable property' only

Element of entrustment of property has been procured to convert an offence of 'dishonest misappropriation' to 'criminal breach of trust'

Definition of criminal breach of trust provided in S. 405, P.P.C. is wide enough with extended concept while erasing the word 'moveable property' and adding the word 'entrustment', as compared to S. 403, P.P.C.

Said definition too is at little contrast with clause (c) as it does not find mentioned the word 'fraudulently'

Section 5(1)(c) of Prevention of Corruption Act, 1947, covers the misdemeanours like misappropriation committed either with dishonest intention or intention to defraud

When the evidence discloses element of fraud only, S. 405, P.P.C. shall not be applicable for misappropriation, likewise rest of the sections for penal consequences including S. 409, P.P.C. shall not be attracted, and in that situation offence shall only be dealt with under S. 5(1)(c) of Prevention of Corruption Act, 1947.

While dealing with application under S. 249-A, Cr.P.C., it was mandatory for Trial Court to take into consideration material collected during the course of investigation which was lacking

Exclusive reliance upon contents of FIR in exclusion of other prosecution evidence was unjust, erroneous and arbitrary

Reasons made basis to acquit accused even at initial stage by invoking provision of S. 249-A, Cr.P.C. was to base on reasons

Such reasons were to flow from analysis of prosecution evidence besides the law on the subject

Respondent was accused of offence 'criminal breach of trust'

Co-accused was at large who had also been declared a Proclaimed Offender

Prosecution, in order to substantiate the allegations, relied upon statements of about ten witnesses besides stamp paper taken in possession during the course of investigation and also got the same verified by the concerned stamp paper, whose testimony in terms of statement under S. 161, Cr.P.C. was also relied upon

High Court set aside order of acquittal and remanded matter to Trial Court for decision afresh on application under S. 249-A, Cr.P.C.

Appeal was allowed accordingly.

Breach of any term of agreement to sell does not fall foul of S. 406, P.P.C., as the agreement to sell is created under Contract Act, 1872, where one party signifies his willingness to do or not to do anything against a consideration and if the same is accepted by the other party it becomes a promise whereas the said promise if enforceable by law creates the term "contract"

Hence, it is manifestly clear that any agreement requires an offer/proposal, acceptance, promise, consideration and enforceability then the same creates the reciprocal obligations agreed between the parties

Agreement (between the parties) to perform the obligation whereas payment of money does not fall within the preview of "entrustment" of property in terms of S. 406, P.P.C., even otherwise, there is no misappropriation if the seller after receiving the sale consideration or part of sale consideration refuses to transfer the property or fails to abide the terms of agreement as the said failure or breach of terms cannot be equated with dishonest use, disposal of the property, violation of any legal contract, however, any breach of such agreement has a remedy under Specific Relief Act, 1877, where one can seek specific performance of a contract if the same is enforceable by law and the court of law has to see which party is responsible for refusal or failure to abide by the terms of the contract

Specific Relief Act, 1877 provides a mechanism which covers all those contracts between the parties which have been executed in terms of Contract Act, 1872 and their remedies are only provided in Specific Relief Act, 1877, where the ingredients of criminal breach of trust have no space as the concept of mens rea can only be assessed by the criminal court whereas the agreement does not fulfill the requirements of criminal breach of trust.

Essential ingredients for the offence of criminal breach of trust are (a) entrustment; (b) dishonest misappropriation or conversion to his own use by the person in whom the confidence is reposed; (c) dishonest use or disposal of property in violation of any direction of law; and (d) dishonest use or disposal of property in violation of any legal contract.

Co-accused alleged that the vehicle in question was given to the accused, who misappropriated the same and never returned it

Only material against the accused was the statement of the co-accused which was per se not admissible in evidence

To attract the provisions of section 406, P.P.C., it was necessary to fulfil basic requirements of 'entrustment' and 'misappropriation with 'mens rea'

Both said ingredients of section 406, P.P.C. were totally absent in the present case

Hence, there was no independent evidence or material against the accused which would directly involve him in the offence under section 406, P.P.C.

Further, no recovery had been made from him and the question of his guilt or innocence was a matter which required further inquiry at trial stage

Offence alleged also did not fall within the prohibitory clause of section 497, Cr.P.C.

Petition for leave to appeal was converted into an appeal and allowed, and accused was admitted to bail.

Scope of Section 405, P.P.C. stated.

In a case where the primary offence of criminal breach of trust under section 405, P.P.C. is not made out, the charge for the offences under section 9(a)(x) & (xi) of the National Accountability Ordinance, 1999 cannot sustain.

Expression "entrustment" with the property or with any domain over the property has been used in a broader sense under section 405, P.P.C.; it has wide and different implications in different context

While expression "trust" in section 405, P.P.C. is a comprehensive expression and has been used to denote various types of relationship, like relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.

In the present case, the alternative remedy of filing petition (under Cr.P.C) was not availed rather accused persons/ respondents directly filed a Constitution petition (before the High Court) calling in question the very registration of FIR

Contents of the crime report were totally ignored by the High Court and were not taken into consideration while adjudicating the matter

Bare perusal of the FIR and the agreement to sell prima facie revealed that a clear allegation of entrustment and misappropriation of the property was made by the petitioner/vendee against the respondents/vendors in the FIR, which prima-facie disclosed an offence under section 405, P.P.C. punishable under section 406, P.P.C.

Admittedly, despite lapse of statutory period, the challan had not been submitted before the Trial Court, which ex-facie meant that investigation had not been completed

In such circumstances, the possibility could not be ruled out that further material may be collected for proceeding with trial

Question regarding determination as to whether there was an entrustment of property, as asserted by the petitioner, could best be left to Trial Court to consider and decide in exercise of its power after recording of evidence

Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside with the direction to the prosecution branch to submit challan of the case before the Trial Court without un-necessary delay.

Accused was convicted for fraudulently receiving money from the members of the public under the guise of a fake housing scheme without any allotment or delivery of physical possession of plots to the allottees and dishonestly converting it to his own use

Accused had purchased a piece of land measuring 23 acres wherein a housing scheme was announced and the payment of the said land was to be completed in five years

Total number of persons who had sought booking in the scheme were 412

During this period, a dispute arose between accused and vendor

Vendor had obtained stay orders from the Civil Court, as such the accused had failed to develop the scheme

Out of 412 only 10 allottees had appeared before the Court

Two of the said witnesses had admitted in cross-examination that they had not paid the complete consideration amounts to the accused

Investigating Officer had admitted that the scheme had not matured due to civil litigation

Legislature from the expression "public at large" had intended to focus the public at macro level

Expression did not aim at the offences committed at the micro level

Prosecution in order to attract the mischief of S. 9(a)(ix) and (x) of National Accountability Ordinance, 1999, was obliged to bring on record that the accused was found guilty of defrauding the public at large scale

Prosecution had only produced ten witnesses and such a small faction of the society did not fall within the definition of expression "public at large"

Case was one of civil dispute based upon alleged breach of the agreement for which remedies laid somewhere other than in a criminal court

Appeal was accepted and the impugned judgment was set aside.

Allegation levelled in the FIR was that the complainant had paid certain amount to the accused and his co-accused persons as trust for the purpose of purchasing plots but the same was not returned

Held; the amount was paid as advance for purchasing plots and when the plots were not given to the complainant then the FIR was got registered, therefore, prima facie this was a civil transaction and not the case of "criminal breach of trust" defined under S. 405, P.P.C. and punishable under S. 406, P.P.C.

Complainant after joining hands with the police had tried to convert a civil transaction into a criminal one through registration of the case, which fact itself reflected mala fide intention on the part of the prosecution

Reasonable grounds were not available on record to connect the accused with the commission of alleged offence

Insistence of Investigating Officer for arrest of the accused in the case showed mala fide intention on the part of the prosecution

Pre-arrest bail was allowed, in circumstances.

Broken promise does not constitute a criminal offence.

Dispute between the parties was of civil nature and the complainant was trying to get the same resolved through criminal proceedings, which could not be allowed

Entrustment of property was sine qua non to attract S. 406 of P.P.C. which was lacking in the case

Broken promise did not constitute a criminal offence

Petition for cancellation of bail was dismissed, in circumstances.

Alleged offence was not recognized as a contravention within its pale of jurisdiction so as to extend protection to petitioners under S. 3 of Microfinance Ordinance, 2001

Allegations against petitioners constituted offence under S. 409, P.P.C. which was scheduled offence under Federal Investigating Agency Act, 1974

Procedure to be followed in the wake of some contraventions cognizable and punishable was provided in Ss. 22 & 28 of Microfinance Ordinance, 2001 and not the offences defined in other laws including allegations of fraudulently usurpation of gold kept as trust by an entity professing to be Microfinance Bank

High Court declined to interfere in inquiry proceedings initiated by Federal Investigating Agency against petitioners

Constitutional petition was dismissed, in circumstances.

High Court observed that mere involvement in other cases could not disentitle accused from relief of bail, if accused otherwise had succeeded in bringing his case within the meaning of further inquiry

Liberty of a person is a precious right that has been guaranteed by the Constitution

Where there is slight tilt towards grant of bail, same needs to be preferred over letting one to confine in jail for an indefinite period in the name of trial when conclusion thereof can completely impose due punishment for such released person

Investigation was completed and accused was previously non-convict, who was no more required by police for the purpose of further investigation

Accused had been behind the bars for five months without any progress in trial

Fair and speedy trial was one of the fundamental rights of accused and no moral or legal compulsion existed to keep him behind the bars for an indefinite period which would amount to punishment without trial

Case of accused was one of further inquiry

Bail was allowed, in circumstances.

Registration of FIR by police was unwarranted and uncalled for as the alleged offence could only be tried by the Banking Court constituted under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001

Action could only be taken by an Investigating Agency nominated by Federal Government on a complaint in writing moved by authorised officer of a financial institution

Local police had no authority to register a criminal case in the matters between a Bank and its customers

Constitutional petition was allowed, in circumstances.

Respondent filed application under Ss. 22-A & 22-B, Cr.P.C. before Ex-officio Justice of Peace alleging therein that the petitioner dishonestly misappropriated two cheques drawn by him, which application was allowed

Police report, called for by Ex-officio Justice of Peace, depicted that the petitioner had already got lodged FIR in respect of a cheque drawn by respondent, which on presentation before the concerned Bank was dishonoured

Respondent had not produced any cogent evidence in support of his allegation

Ex-officio Justice of Peace had passed a mechanical order without applying his mind by not even considering the police report

Respondent had not approached the court with clean hands and had withheld a material fact that he was arrested in the FIR got lodged by the petitioner

High Court allowed the constitutional petition and set aside the order passed by Ex-officio Justice of Peace.

Magistrate acquitted the accused persons on the ground that Ss. 420 & 406, P.P.C., had different ingredients and as such the accused could not be convicted for both offences at the same time

Held; such reason or ground amounted to predicting the fate of a criminal case

Trial Court was duty bound to advert to and examine the contents of FIR, material and evidence submitted with charge sheet while framing charge and it could omit any of the sections of law for which accused could not be tried or if there was no evidence to proceed with trial for such allegation but could not acquit any accused in the middle of trial on the ground that conviction on both accounts would be illegal

Trial Court had to sift grain from chaff and after conclusion of trial to see what offence, if any, was proved against the accused

Mere mentioning or application of a wrong section in FIR or charge sheet was no ground to acquit accused under S. 249-A, Cr.P.C.

Order passed by Trial Court was perverse, arbitrary, un-sustainable in the eyes of law and suffered from factual and legal infirmity

Appeal was allowed and the case was remanded to the Trial Court with direction to conclude the trial after recording evidence of the parties.

Appellant assailed acquittal of respondent on the ground that before passing the judgment Trial Court did not hear his counsel; that on the relevant date his counsel was out of country; that an associate advocate had appeared before the Trial Court for adjournment but his request was not allowed and that presence of the counsel for the complainant was mentioned in the top of the impugned judgment but no augments by said counsel appeared in the said judgment, therefore, the appellant was condemned unheard

High Court observed that it was a fit case for remand to the Trial Court

Appeal was allowed and the matter was remanded to the Trial Court for decision afresh.

Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the same was not transferred in his favour

Record showed that there was an inordinate and unexplained delay of about four months in the lodging of the FIR, which made the prosecution case doubtful

Appeal against acquittal was dismissed accordingly.

Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the plot was not transferred in his favour

Complainant deposed that he met the accused in the office of an advocate, where the accused induced him to purchase his plot

Complainant entered into agreement to sell with the accused regarding plot, which was to be allotted to the accused for sale consideration amount of Rs.20,00,000/- and paid Rs.11,00,000/- as earnest money to the accused in presence of the witnesses

Complainant admitted that he had also filed a suit for specific performance of contract before the civil court

Complainant also admitted that he did not produce said advocate before the Investigation Officer in support of his version

Prosecution witness deposed that agreement to sell was executed between the complainant and the accused in his presence

Said witness further deposed that complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and he was also the marginal witness of the said agreement to sell

Investigating Officer admitted that he had not interrogated the advocate because he did not join the investigation

Perusal of the record revealed that as a result of the agreement to sell, the complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and it was not proved that it was an entrustment

With regard to the said agreement to sell the complainant had also filed a suit for specific performance before the civil court

Breach of any term of agreement to sell, in circumstances, did not fall within the criteria of criminal breach of trust as the agreement to sell had been created under the Contract Act, 1872, where one party signified his willingness to do anything against a consideration

Payment of earnest money did not fall within the preview of "entrustment" of property in terms of S.406, P.P.C.

Even otherwise, there was no misappropriation if the seller after receiving the sale consideration or part of sale consideration, refused to transfer the plot or failed to abide by the terms of agreement, as the said failure or breach of terms could not be equated with dishonest use, disposal of the property or violation of any legal contract

Any breach of such agreement had a remedy under Specific Relief Act, 1877, where one could seek a specific performance of a contract, if the same was enforceable by law

Court of law had to see which party was responsible for refusal or failure of performance of the terms of the contract

Trial Court did not acquit the accused on the sole ground of non-production of prosecution evidence but also on the ground that there seemed no breach of trust as alleged by complainant

Record showed that the matter seemingly did not fall within the concept of breach of trust as defined in S.405 of the P.P.C.

First Information Report being the result of alleged breach of terms of the agreement, the complainant had tried to settle the civil dispute through initiation of criminal proceedings, which abuse could not be allowed to perpetuate

In the present case, the complainant had already approached the civil court by filing a civil suit for recovery and compensation against accused

Agreement to sell when provided the remedy for breach of any term in the contract as of damages, all other remedies could be seen under the said clause

Criminal prosecution in the case was just an abuse of process, which was apparent on record

Circumstances established that ingredients of the offence under S.406, P.P.C. was not made out against the accused

Appeal, against acquittal was dismissed accordingly.

In the first place there must be a trust of dominion with property or with dominion over it; secondly, the accused misappropriated it or converted it to his own use or used it or disposed of the same.

Criminal breach of trust is committed by a person (i) when there is dishonest entrustment of property to any person or with dominion over the property (ii) dishonest misappropriation or conversion of the property in his own use by the person who has been entrusted with the property (iii) who dishonestly use or dispose of the property in violation of any direction of the law prescribing the mode in which the trust is to be discharged (iv) dishonest use or disposal of the property in violation of any legal contract express or implied, which he has made touching the discharge of such trust and (v) willfully suffer other person to do so by the person to whom the property has been entrusted.

Allegation against accused-employee was that he received payments from his employer's customers in his personal accounts; that he transacted payments from company's account of his employer for consignments personally settled with foreign customers, and that he confessed his guilt and paid back part of the alleged sum with an undertaking for the remainder

Held, that the prosecution and complainant had not been able to point out, any material/evidence to establish alleged transactions, each of which was admittedly documented

No statement was available on the record to confirm the alleged confession by the accused, either individually or jointly with other employees

In addition to the crime report, the only statement was that of a prosecution witness, who referred to some "voice messaging" by the accused as proof of his guilt without production thereof before the Investigating Officer, foreclosing the possibility of its forensic confirmation

Not even the time or date of impugned transactions was mentioned in the crime report

Loss, allegedly incurred due to the employees, could not be equated with breach of trust

Argument that mala fide was lurking behind the intended arrest could not be dismissed and as such given the accused's clean past, his remission into custody would be a measure far from being conscionable

Case of accused came within the remit of S. 497(2), Cr.P.C.

Accused was admitted to anticipatory bail.

Complainant was aggrieved of discharge of accused by Magistrate on first day of his arrest on the ground that offence under S.406, P.P.C. was not made out

Validity

Submission of report by police was necessary for such discretion to pass order under S.63, Cr.P.C. to discharge accused justly and fairly

Accused was discharged by Magistrate on the first day of arrest despite the fact that statements of complainant and witnesses recorded under section 161 Cr.P.C. were available on record

Magistrate had not already granted physical remand of accused and police could not collect incriminating evidence against them

High Court set aside such mechanical order of discharge and remanded the matter to Magistrate for decision afresh on remand application filed by police

Constitutional petition was allowed in circumstances.

Allegation against the accused persons was that they were handed over a certain amount of sum by the complainant which they had dishonestly misappropriated

First Information Report was registered with a delay of two years and no reasonable explanation was offered for such a deferral in reporting the matter to the police

Delay was conspicuous by its length and casted doubt on the veracity and reliability of the prosecution evidence

First Information Report was registered under S.406, P.P.C. with the allegation that the petitioners had allegedly committed criminal breach of trust

Evidentiary material produced before the court revealed that no evidence was available to substantiate the allegation that the accused persons had committed an offence punishable under S.406, P.P.C.

Mere mentioning of word amanat in the FIR was not sufficient to constitute an offence under S. 406, P.P.C. when the narrative of the FIR suggested that the money was handed over to the accused persons allegedly for their own use as a loan and was not entrusted to them

Use of word amanat in the FIR had also laid bare the mala fide of the complainant and as well as the police

Investigation of the case was complete

Version of the complainant as well as the accused persons had already been verified by the Investigating Officer

No specific denomination, identification marks or number of the currency notes, which were handed over by the complainant to the accused persons, had been mentioned in the FIR, therefore, bail petition cannot be dismissed merely on the ground of possible recovery of the amount of the complainant from the accused persons

Sending the accused persons behind the bars would cause irreparable loss to their reputation

Bail petitions were accepted and ad-interim pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Where any property is entrusted to a person and that person dishonestly misappropriates that property then he commits the offence of criminal breach of trust.

Mere breach of a promise, agreement or contract, in absence of clear entrustment, does not ipso facto attract the definition of criminal breach of trust.

Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.

Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.

Registration of FIR by police was unwarranted and uncalled for as the alleged offence could only be tried by the Banking Court constituted under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001

Action could only be taken by an investigating agency nominated by Federal Government on a complaint in writing moved by authorised officer of a financial institution

Local police had no authority to register a criminal case in the matters between a Bank and its customers

Constitutional petition was allowed, in circumstances.

Prosecution case was that the accused entered into an oral agreement with the appellant for sale of land measuring 319 kanals and certain amount was paid to him but the accused only transferred 110 kanals and misappropriated the remaining amount

Accused thereafter entered into an agreement to return the said amount in three instalments but he failed to return it

Trial Court had rightly found that the agreement between the accused and appellant was not proved

One of the eye-witnesses had stated that the person who had entered into oral agreement with the accused was transferred while the other witness had stated that the agreement was not executed in his presence

Provisions of S.406, P.P.C., were not attracted in the present case as handing over of amount to accused as trust was not proved

Prosecution had failed to prove its case against the accused beyond reasonable doubt

Appeal was dismissed.

Ingredients of the criminal breach of trust, detailed.

Offence of criminal breach of trust would not constitute unless ingredients thereof including "voluntary entrustment of property "and" its subsequent misappropriation" are not co-existing.

Record showed that earlier, accused was granted pre-arrest bail but he became absent and was declared proclaimed offender and later on, his bail was also got cancelled by the complainant

Alleged transaction, i.e. sale-purchase, did not, ipso facto, constitute "entrustment" and departure thereof a "criminal breach of trust"

Offence did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C., even within the category of heinous crimes

Case appeared to be one of further inquiry and by holding so, he was allowed pre-arrest bail earlier, that too was a factor which, prima facie, supported the version of the accused regarding his false involvement and the fact that a civil nature lis had been attempted to be converted into criminal to settle the score

Allegation of jumping the concession of bail without repetition and keeping himself away from the process of law, in comparison with the facts, brought the pendulum down to the accused

Objection that in presence of order of cancellation of bail by the Court earlier, accused could not ask for to avail extraordinary concession of pre-arrest bail appeared to be somewhat harsh because not only the referred order was passed at his back but at the relevant time he was not a proclaimed offender, rather he was subsequently declared as such

Section 406, P.P.C., did not fall within the ambit of prohibitory clause and in the offences which were not included in the ambit of prohibitory clause, grant of bail was a rule and refusal an exception

First Information Report and the other material available on record showed that offence could be in the nature of S. 403, P.P.C., or S. 420, P.P.C., which were bailable and in such like case bail was granted as matter of right

When any accused succeeded to prove his case in the purview of further inquiry then he was entitled for bail as a matter of right and in that eventuality even remaining proclaimed offender of said accused, did not disentitle him from the bail because when there was a context between further inquiry and the proclaimed offender for the purpose of grant of bail then element of proclaimed offender would give way to the fact of further inquiry, bail being matter of right

Bail could not be withheld merely on the ground that the accused remained a fugitive from law because that was only a matter of propriety.

Complainant was aggrieved of acquittal of accused by Trial Court just after framing of charge and without recording of any evidence

Plea raised by complainant was that Trial Court acquitted the accused without deciding his application for placing documentary evidence on record

Validity

Charge was mainly hinged upon record but Trial Court instead of entertaining application of complainant or deciding the same in either way on its own merits, straightaway proceeded to acquit the accused

Order of acquittal by Trial Court was transgression of authority and did not warrant exceptional treatment for want of exceptional circumstances

Acquittal in terms of S. 249-A, Cr.P.C. or for that matter S. 265-K, Cr.P.C. could not be equated with acquittal earned after full length trial and recording of evidence

Principle of double presumption of innocence was not attached to such order of acquittal

High Court set aside order of acquittal and remanded the case to Trial Court for proceeding in accordance with law

Appeal was allowed in circumstances.

Conviction for mis-appropriation cannot be sustained on the charge of criminal breach of trust without such proof.

Complainant, who had friendly relations with the petitioner, allegedly handed over Rs. 900,000/- to him (petitioner) as trust

Petitioner/accused contended that ingredients of criminal breach of trust were not attracted

Complainant contended that his amount was yet to be recovered from the petitioner

Held, question was when there were so many Banks in the city, then why the complainant handed over the Rs. 900,000/- to the petitioner for keeping the said amount as trust with him

Word 'amanat' (trust) had malafidely been mentioned by the complainant in the FIR, prima facie, in order to make the same a cognizable offence punishable under S.406, P.P.C.

Mere mentioning the word 'amanat'(trust), in the contents of FIR would not attract the provisions of S.405, P.P.C., punishable under S.406, P.P.C., when otherwise ingredients of the said offence were not attracted from the contents of FIR

No specific denomination, identification, marks or number of the currency notes, which were handed over by the complainant to the petitioner, had been mentioned in the FIR, therefore, bail petition could not be dismissed merely on the ground of possible recovery of the amount of the complainant from the petitioner

Possibility of mala fide involvement of the petitioner in the present case by the complainant due to money dispute, could not be ruled out at bail stage

Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Police, after investigating the matter prepared a cancellation report and submitted the same before the Judicial Magistrate

Judicial Magistrate agreed with the cancellation report

Respondent preferred a criminal revision petition against the decision of the Magistrate which was accepted

Validity

Criminal revision petition was not maintainable against the executive order passed by the Judicial Magistrate agreeing with the cancellation report submitted by police

Order passed in criminal revision was not sustainable

Constitutional petition was accepted, in circumstances, by setting aside the impugned order.