MUHAMMAD ASIM vs The STATE and another

ORDER

SARDAR MUHAMMAD SARFRAZ DOGAR, J. Through this petition, Muhammad Asim, the petitioner , seeks pre- arrest bail in case FIR No.51/2019, dated 03.04.2019, offence under section 406, P.P.C., registered with Police Station Division, District D.G. Khan.

2. According to the narration of crime report, the briefly allegation against the petitioner is that he along with his accused, borrowed complainant's jewelry for the purpose of sale or show to customer , however , declined to return the jewelry or cash despite demands.

3. Heard. Record perused.

4. Perusal of record transpires that the occurrence took place in the month of October-2018 while the matter was reported to the police on 03.04.2019 with an inordinate delay of about 6-months without any plausible explanation, therefore, chances of petitioner's false implication with deliberation after consultation cannot be ruled out. Reliance can be made on the case of Nadeem alias Nanha alias Billa Sher v . The State (2010 SCMR 949 ).

5. According to the FIR, the complainant handed over jewelry sets valuing Rs.15,00,000/- to the petitioner and his co-accused in order to show it to the customers which were misappropriated; even on stated facts at the most a default in fulfilment of a contractual obligation or a claim to be settled through rendition of accounts in plenary jurisdiction of civil Court is evident, as investment for profit cannot be equated with entrustment within the contemplation of section 405 of the Code ibid. Redressal pursuits are clearly demarcated under the law both in civil as well as criminal jurisdictions; every moral wrong is not a crime nor every broken promise can be enforced through recourse to criminal law .

6. In the attending circumstances, the alleged guilt of the petitioner is necessarily a matter of further inquiry .

Volunteer entrustment of property is sine qua non to constitute an offence under section 406, P.P.C. At this stage, it will be expedient to reproduce the provisions of section 405, P . P.C , 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".

Needless to say that in the absence of clear entrustment mere breach of promise, agreement or contract does not ipso facto attract the definition of criminal breach of trust in terms of 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:- "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."

I also respectfully refer case of Ubedullah v. The State (2003 PCr.LJ 1921) and Haji Javed Iqbal v. The State (2004 YLR 2288 ).

7. All these facts, when seen together , lead to this Court to draw an inference that prima facie, prosecution has no sufficient incriminating material to connect the petitioner with the commission of alleged offence. Petitioner's case, therefore, is covered under subsection (2) of section 497, Cr.P.C. calling, for further inquiry into his guilt as per law laid down by the august Supreme Court of Pakistan in cases reported as Ehsan-ullah v. The State (2012 SCMR 1137).

8. The petitioner has joined the investigation. The offence under section 406, P.P.C. does not fall within the prohibitory clause of section 497 of Cr.P.C., therefore, plea of malice raised by the petitioner cannot be discarded outright. Reliance is made upon Mian Allah Ditta v . The State and others (2013 SCMR 51 ).

9. In view of all above, this petition is accepted and ad interim pre-arrest bail already allowed to the petitioner is hereby- confirmed subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000/- (Rupees two lacs only) with one surety in the like amount to the satisfaction of the learned trial court.

10. It is, however , clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition.