Ali Raza vs The State and others
This criminal appeal arose from a petition seeking post-arrest bail in a case registered under Section 406 of the Pakistan Penal Code 1860 for criminal breach of trust. The prosecution alleged that the complainant's vehicle was misappropriated, with a co-accused claiming he had handed the vehicle over to the petitioner. The core legal question was whether a post-arrest bail could be granted where the only incriminating material against the accused was the statement of a co-accused, and no recovery was effected. The Supreme Court allowed the appeal and granted bail, holding that the statement of a co-accused is per se inadmissible in evidence. The Court observed that the essential ingredients of Section 406, namely entrustment and dishonest misappropriation with mens rea, were completely absent as there was no independent evidence linking the petitioner to the offence. Furthermore, since no recovery was made during physical remand and the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, the case required further inquiry.
- Is the bare statement of a co-accused sufficient to deny post-arrest bail in the absence of independent corroborative evidence?
- What are the essential ingredients required to attract the offence of criminal breach of trust under Section 406 of the Pakistan Penal Code 1860?
- Can post-arrest bail be granted where no recovery has been made from the accused and the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 406, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
IJAZ UL AHSAN, J. This is an application seeking post-arrest bail in case FIR No.1388 of 2021 dated 12.09.2021 registered under section 406, P.P.C. at Police Station Batapur, Lahore.
2. The precise allegation against the petitioner is that the complainant had given a vehicle/Car bearing registration No.LEC-3816 to Syed Qasim Bukhari who is the owner of a showroom and deals in the business of Rent a Car. The complainant alleged that he was neither paid any rent nor the vehicle was returned to him. On contact, he was informed that the vehicle of the complainant had been misappropriated. On further investigation, the co-accused Syed Qasim Bukhari alleged that he had given the vehicle to the petitioner, who had misappropriated the same and the whereabouts of the vehicle were unknown. The petitioner categorically denied the said allegations and stated that he had nothing to do with the transaction.
3. The learned counsel for the petitioner submits that it is a case of no evidence. There is neither any documentary nor oral evidence against him and on the sole statement of the co-accused who was directly involved in the offence, he has been arrested and has been languishing in jail since 17.09.2021.
4. The learned Additional Prosecutor General, Punjab admits that there is no direct evidence against the petitioner and the sole allegation against him is that the co-accused has stated that he had given the vehicle in question to the petitioner. It is further pointed out that the petitioner remained on remand for 10-days but no recovery could be effected from him.
5. Having heard the learned counsel for the petitioner, the learned Additional Prosecutor General, Punjab and going through the record, we find that the only material against the petitioner is the statement of the co-accused Syed Qasim Bukhari which is per se not admissible in evidence. The ingredients to attract the provisions of section 406, P.P.C., it is necessary to fulfil basic requirements of (i) entrustment and (ii) misappropriation with mens rea. Both these ingredients of section 406, P.P.C. are totally absent. Hence, there is no independent evidence or material against the petitioner which would directly involve him in the offence under section 406, P.P.C. Further, no recovery has been made from him and the question of his guilt or innocence is a matter which requires further inquiry at trial stage. We also note that the offence does not fall within the prohibitory clause of section 497, Cr.P.C.
6. In this view of the matter, the present petition is converted into an appeal, and allowed. The petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of the trial Court.
Cited by 3 cases
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