GHULAM RASOOL vs THE STATE and another

ORDER

SHAHID HAMEED DAR, J.---Ghulam Rasul petitioner seeks bail before arrest in case F.I.R. No,105 of 2010 dated 13-3-2010 for offences under section 420, 406, P.P.C. registered at Police Station Gawalmandi, Lahore on the complaint of one Muhammad Anwar.

2. Brief facts of the case are that the complainant purchased a second hand motorcycle from Shah Jee Motors Farooq Center, Lahore Hotel on 15-5-2009 for consideration of Rs,28,500; the proprietor of the company issued a receipt and an open transfer letter to the complainant with the promise that the original relevant dkuments would be delivered to the complainant after due completion; Ghulam Rasul (petitioner). was also with him at that time who, joined by one Imran approached the proprietor of Farooq Center and deceitfully obtained the aforesaid documents from him by pretending that he was sent by Muhammad Anwar (complainant); thereafter, he fraudulently transferred the above said motorcycle-in the name of his friend Muhammad Imran, by fabricating forged documents; Ghulam Rasul had also -misappropriated the wages of the complainant to the tune of Rs,55,000.

3. Learned counsel for the petitioner contends that the petitioner has been falsely implicated in this case by the complainant due to his mala tide intention and previous grudge against hith; the story contained in the F.I.R. is self contradictory and it does not disclose commission of an offence under section 406, P.P.C. as no property had been entrusted by the complainant to the petitioner and section 420, P.P.C. is bailable. Relies upon 2006 PCr.LJ (Lahore) 1900, 2008 MLD (Lahore) 331.

4. On the other hand learned Addl. Prosecutor-General assisted by learned counsel for the complainant opposes the grant of bail to the petitioner with the contention that the petitioner has betrayed the friendship of the complainant by receiving the documents of the motorcycle on a false pretext and thereafter transferred the same to his co-accused through fraudulent means; the petitioner has failed to point out any element of malice or ulterior motive on the part of the complainant, therefore, he is not entitled for grant of extraordinary concession of pre-arrest bail.

5. Arguments heard. Record perused.

6. It has not been alleged anywhere in the F.I.R. that the complainant had entrusted some property to the petitioner within the meaning of section 406, P.P.C. so, it is hard to attach any importance with insertion of section 406, P.P.C. with section 420, P.P.C. on the tenor of the F.I.R. Both the above said penal provisions are miles apart from each other so far as, there definition is concerned..

Section 405, P.P.C. provides the definition, of criminal breach of trust which reads as under:-- "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 wilfully suffers any other person to do, commits "criminal breach of trust."

7. It is evident from the above definition that an offence of criminal breach of trust shall be deemed to have been committed when some property is given on trust which is required to be returned to a person creating the said trust. In the instant case, the complainant has not alleged that lie had given any documents of the motorcycle or the motorcycle itself to the petitioner, to be kept by him by way of a trust and the same were bound to be returned to the complainant. Unless such condition is fulfilled, it shall not attract the provisions of section 405, P.P.C. read with section 406, P.P.C. So far as the allegation of transfer of the ownership of the motorcycle by the petitioner to his co-accused Imran is concerned no evidence has been produced by the complainant in this regard during the course of investigation. One Asghar Ranjha, of 'Shah Jee Motors joined the investigation on 9-4-2010 and got recorded his statement under section 161, Cr.P.C. wherein he has not named the petitioner to have taken away the documents of the motorcycle either from him or from any other person. The complainant appears to be aggrieved against the petitioner as he has alleged in the later part of the F.I.R. that he had misappropriated his wages amounting to Rs,55,000. The implication of the petitioner in the instant case due to malice or ulterior motives of the complainant cannot be ruled out. Prima facie it cannot be said that the petitioner has committed any non- bailable offence.

8. For the foregoing reasons I accept this petition and confirm the ad-interim pre-arrest bail allowed to the petitioner on 6-5-2010 subject to furnishing fresh bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial Court.