Majid Ali Versus State

Order tanveer Ahmad Sheikh, J. --- The petitioner (Majid Ali), being arrayed as an accused in case FIR No. 2848 of 2024, dated 27.10.2024 registered with Police Station Misri Shah, District Lahore for offence under Section 406 P.P.C, seeks his post arrest bail, after the same was refused by the court of learned Additional Sessions Judge, Lahore vide order dated 03.02.2025.

2. According to FIR Muhammad Aslam (complainant) and others namely Abdul Rehman--Kashif Akram alias Babar-Ahmad Akram-Muhammad Afzal-Asif Butt-Burhan Aslam-Muhammad Aslam were dealing in the business of stainless steel sheets. Majid Ali son of Muhammad Arshad accused purchased steel sheets from the godown of complainant and others at different occasions; he/accused purchased sheets worth Rs.2,02,19,591/- from Abdur Rehman; purchased sheets worth Rs.96,11,793/- from Kashif Akram alias Babar; purchased sheets worth Rs.31,48,861/- from Ahmad Akram; purchased sheets worth Rs.6,18,000/- from Muhammad Aslam; purchased sheets from Asif Butt worth Rs.35,00,000/-; purchased sheets from Burhan Aslam worth Rs.30,00,000/-; purchased sheets from Muhammad Aslam worth Rs.28,42,440/-. He/accused purchased goods worth Rs.4,29,40,685/- as a trust. Accused stated that above said goods were lying with him as trust and he would return the above goods after some time, or price of the same. Accused failed to return the goods, nor paid price of the same.

3. After hearing learned counsel for the petitioner, learned counsel for complainant, learned Deputy Prosecutor General and perusal of record it was observed by this Court that petitioner allegedly purchased goods (steel sheets) from complainant and others valuing more than four crores. Main thrust of the learned counsel for the petitioner was on the point that offence under Section 406 P.P.C was not made out even if contents of FIR are admitted as correct and the very FIR was liable to be quashed.

4. In order to appreciate the contention of learned counsel for petitioner, it is better to have a look of Section 405 of P.P.C, which defines the offence of criminal breach of trust. Said provision is being produced below for the facility of reference:-

'405. 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".

In the light of supra mentioned reproduced penal provision, it appears to be clear that to attract the offence of criminal breach of trust punishable under section 406 P.P.C, the essential ingredients are:- i) There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted. ii) The person in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted. iii) He 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. iv) He dishonestly uses or disposes of that property in violation of any legal contract, express or implied, which he has made touching the discharge of such trust.

5. The major ingredient of the above offence was that accused must have been entrusted with some property. He should hold the property in a fiduciary capacity. The term "entrust" has been used in its legal meaning and not in its dictionary meaning or popular sense. Accused should have property in his possession otherwise than for himself. Said penal provision attracts only when owner of the property makes it over to accused to be retained by him until a certain contingency arises or to be disposed of by him/accused on the happening of certain event or to be disposed of in the light of certain terms and conditions of the trust.

6. In the case in hand accused/petitioner allegedly purchased goods as business dealer from complainant and others, who were doing the business at Misery Shah, Lahore. 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 is presumed for the sake of arguments 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 Section 415 of P.P.C would be attracted, for which penalty has been provided under Section 420 of P.P.C, which was although of imprisonment extending upto seven years, but was shown to be bailable in the second schedule appended with Code of Criminal Procedure.

7. For the reasons recorded supra, the petitioner has succeeded in making a good case for his enlargement on bail. He was behind the bars ever since his arrest on 25.01.2025. His person was no more required. I, therefore, accept the present petition. Petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned trial Court.

8. Needless to mention that any observation made in the above order are tentative in nature and shall not influence the learned trial court in any manner.

JK/M-98/L Petition allowed.