Mumtaz Hussain and another vs The State and another

ORDER

SARDAR MUHAMMAD SARFRAZ DOG AR, J.---Through this petition, Mumtaz Hussain and Zafar Iqbal Majid, the petitioners, seek pre-arrest bail in case FIR No.163/2019, dated 18.3.2019, offence under section 406, P.P.C., registered with the Police Station Bhowana, District Chiniot, at the instance of Qaiser Abbas complainant.

2. According to the narration of crime report, the allegation against the petitioners is that they along with their co- accused received an amount of Rs. 7,00,000/- as trust for business purpose and thereafter also purchased wheat crop of Rs. 2,00,000/- and misappropriated the said amount.

3. Heard. Record perused.

4. The occurrence allegedly took place on 12.07.2016, whereas, the FIR was recorded on 18.3.2019 after delay of more than two years without explaining any sufficient reasons, which is fatal to the A prosecution's case at this stage. According to the prosecution, the parties have business relations.

5. In the attending circumstances, the alleged guilt of the petitioners is necessarily a matter of further inquiry .

Volunteer entrustment of property is sine que non to constitute an offence under B 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 C definition of criminal breach of trust in terms of section 405, 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 ).

6. All these facts, when seen together , lead this Court to draw an inference that prima facie , prosecution has no sufficient incriminating material to connect the petitioners with the commission of alleged offence and chances of petitioners implication with mala fide intention cannot be ruled out.

7. The petitioners have 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 petitioners cannot be discarded outright. In view of all above, this petition is accepted and ad-interim pre-arrest bail already allowed to the petitioners is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.2,00,000/- (Rupees two lacs only) each with two sureties each in the like amount in the satisfaction of the learned trial court.