Malik YAMEEN AWAN Versus State
ORDER
MAHMOOD AHMAD BHATTI, J.--- Malik Yameen Awan, Malik Nadeem Awan, Adeel Mehdi, Muhammad Tahir Abdullah Kiani and Rai Barish Ali, the petitioners seek pre-arrest bail in case FIR No.45 dated 15.1.2015 registered under section 406, P.P.C. at Police Station Faisal Town, Lahore.
2. The gravamen of the complaint made by the complainant is that Malik Yameen Awan, petitioner No.1 robbed the complainant of Rs.1,93,00,000/- by making a misrepresentation that it would be invested in the business of running a T.V. Channel. A rosy picture was painted by the accused to make him part with this money. The complainant was to draw a profit of Rs.10,00,000/- to Rs.15,00,000/- each month. But this was not to be Rather, Malik Yameen Awan, and the co-accused misappropriated this money and they are not willing to return the same to the complainant. As such they are guilty of criminal breach of trust within the purview of section 405, P.P.C., punishable under section 406, P.P.C.
3. Arguments heard. Record perused.
4. There is a delay of three years and three months in reporting the alleged occurrence to the police. No explanation, muchless satisfactory and tenable one has been offered for this inordinate delay. From a perusal of the FIR, and the documents furnished by the complainant himself, it is crystal clear that Malik Yameen Awan, petitioner No.1 herein and the complainant entered into a partnership. The shares of the parties have been set forth in the partnership agreement. It is also provided therein that in the event of a dispute between them, the matter shall be referred to the arbitrators. Even if the petitioner No.1 was to account for some money, the complainant might have instituted a suit for rendition of accounts. On his own showing, he has avoided adopting a complex, time-consuming and labyrinth procedure, meaning thereby that the prosecution has been launched by him with the intent to make the petitioners comply with his demands in no time. Another intriguing aspect of the case is that FIR No.45/2015 was registered on 15.1.2015 in pursuance of an order dated 3.1.2015 passed by a learned Ex-Officio Justice of Peace, Lahore. Admittedly, the operation of the aforesaid order was suspended by this Court by the order dated 12.1.2015 passed in W.P. No.530-2015. It goes without saying that the moment the aforesaid order was passed, SHO Police Station Faisal Town, Lahore was to stay his hands and not to act upon the order dated 3.1.2015 passed by the learned Ex-Officio Justice of Peace, Lahore. If any authority is required, reference may well be made to the judgment of the apex Court reported as " Din Muhammad and 2 others v. Abdul Rehman Khan " (1992 SCMR 127) in which the law laid down by a Full Bench of this Court in the case of " Karam Ali v. Raja "(PLD 1949 Lahore 100 at 114) was approved of, holding that a stay order will "operate from the time that such order is made and not from the time it is communicated to the executing Court". I shall go along with the contention raised by the learned counsel for the petitioners that the mala fide of the police in registering the case in spite of the order dated 12.1.2015 passed in W.P. No.530-2015 floats on the surface of the record.
5. I have serious reservations and misgivings about the registration of the case under section 406, P.P.C. Taking the contents of the FIR at their face value, the complainant handed over the amount in question to petitioner No.1 for investment. It bears repeating that the same conclusion follows from the partnership agreement' entered into between them. Therefore, the question of "entrustment' of money" and the breach of trust on the part of the petitioners hardly arose. This distinction has already been made by the Hon'ble Supreme Court of Pakistan in the case reported as " Shahid Imran v. The State and others "(2011 SCMR 1614). No matter how the things shaped up, at worst this is a case of breach of a contract, and as such does not fall within the mischief of section 406, P.P.C.
6. Supposing that petitioner No.1 dishonestly misappropriated the money provided to him by the complainant for making investment in the business, his offence would fall under section 403, P.P.C., which carries a penalty of two years' imprisonment. And alternative punishment of "fine" is also provided for. This offence is bailable. To state the obvious, bail cannot be withheld in bailable offences and is to be granted as a matter of right, not as a matter of grace. In such cases, the consideration of ulterior motive spurring on a complainant to involve an accused would hardly matter.
7. At several places in the FIR, the complainant has alleged that the accused/petitioners perpetrated fraud upon him. If so, their offence would fall under section 420, P.P.C., which again is bailable.
8. It was maintained by the complainant in the FIR that one Malik Mansab is privy to all the dealings made between the accused and him. The I.O. of the case has confirmed that even after the lapse of over six months, the complainant has not produced him nor has he himself summoned him. At the moment, it may be observed, albeit tentatively that Malik Mansab, the aforementioned is not willing and ready to make a statement in accordance with the wishes of the complainant.
9. Malik Nadeem Awan, petitioner No.2 is brother of Malik Yameen Awan, petitioner No.1, with whom the complainant entered into a business venture, whereas the other three petitioners are their employees. Their involvement in the case is understandable and prima facie their close proximity to petitioners Nos.1 and 2 has landed them in trouble. Otherwise, there is no allegation against them that they either received the money from the complainant or defalcated it in connivance with their co-accused.
10. In view of the above, the petitioners have not only been able to make out a case for further inquiry within the purview of subsection (2) of section 497, P.P.C., but their apprehension of being arrested with ulterior motive is not unfounded in the peculiar circumstances of the case. Their ad interim pre-arrest bail is, therefore, hereby confirmed, subject to their furnishing fresh bail bonds in the sum of Rs.100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.
HBT/Y-4/L Bail confirmed.