11/10/2022, 18:10 2022 M L D 444
2022 M L D 444
[Lahore]
Before Muhammad Tariq Nadeem, J
Mst. AYESHA ANWAR---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.43499-B of 2021, decided on 27th October, 2021.
Criminal Procedure Code (V of 1898)---
----S.498---Penal Code (XLV of 1860), Ss.406, 380, 448---Criminal breach of trust,
theft in a dwelling house and house trespass---Pre-arrest bail, confirmation of---
Civil litigation---On a dispute of Rs.2,000,000/-between the parties, complainant
got a case registered against accused---Validity---Civil litigation was pending
adjudication between parties---Accused filed a suit against complainant and as a
counterblast complainant had lodged FIR in order to convert civil liability into
criminal---Such exercise to harass, blackmail, humiliate and pressurize accused to
complete nefarious designs of complainant was not permitted under law---
Culpability of accused in offences under Ss.380 & 448, P.P.C. could be determined
by Trial Court after recording and evaluating of evidence---Object of pre-arrest bail
was to save innocent persons from humiliating, harassment and incarceration on the
basis of false implication---Pre-arrest bail was confirmed, in circumstances.
Shahid Imran v. The State and others 2011 SCMR 1614; Ubedullah v. The State
2003 PCr.LJ 1921; Haji Javed Iqbal v. The State 2004 YLR 2288; Khalil Ahmed
Soomro v. The State PLD 2017 SC 730; Shahzada Qaiser Arfat alias Qaiser v. The
State and another PLD 2021 SC 708; Maulana Abdul Aziz v. The State 2009 SCMR
1210; Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 and Meeran
Bux v. The State and another PLD 1989 SC 347 rel.
Zaman Manzoor Dogar for Petitioner.
Hafiz Asghar Ali, DPG with Irshad, ASI.
Kamran Khan Niazi for the Complainant.
ORDER
MUHAMMAD TARIQ NADEEM, J.----Through this petition, Ayesha Anwar,
the petitioner, entreats pre-arrest bail in case FIR No.215/2021, dated 06.04.2021,
under Sections 406, 380, 448, P.P.C., registered with Police Station Millat Park,
Lahore.
2. According to the narration of crime report, the briefly allegations are that the
petitioner and her husband Sohail had received Rs. 20,00,000/- against a portion of
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their house through a mortgage deed, thereafter, when the complainant was ready to
shift her household articles, the petitioner and her husband seized household
articles of the complainant and also forced the complainant to pay Rs. 20,00,000/-
to them and kicked her off from the above said portion of their house. Hence, this
case.
3. Heard. Record perused.
4. Perusal of record transpires that the time and date of occurrence is unknown
whereas the FIR was recorded on 06.04.2021 without explaining any sufficient
reasons for inordinate delay, therefore, chances of petitioner's false implication with
deliberation after consultation cannot be ruled out. Reliance can be placed upon on
the cases of Khair Muhammad v. The State (2021 SCMR 130).
5. According to the prosecution, the allegation against the petitioner is that she
by way of committing criminal breach of trust misappropriated the supra mentioned
amount belonging to the complainant. It is evident from the perusal of record that
the complainant herself admitted in the FIR that her paid amount of Rs. 20,00,000/-
was returned by the petitioner and her ex-husband. In the attending circumstances,
the alleged guilt of the petitioner is necessarily a matter of further inquiry.
Volunteer entrustment of property is sine qua none 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 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. More so, principles for grant of pre-arrest bail, i.e. mala fide intention or
ulterior motive of the police is concerned, it is not possible in every case to prove
the same, however, these grounds can be gathered from the facts and circumstances
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of the case. Khalil Ahmed Soomro v. The State (PLD 2017 SC 730), the following
principle has been enunciated:-
"Although for grant of pre-arrest bail one of the pre conditions is that the
accused person has to show that his arrest is intended by the prosecution out
of mala fide and for ulterior consideration. At pre-arrest bail stage, it is
difficult to prove the element of mala fide by the accused through positive /
solid evidence/materials and the same is to be deduced and inferred from the
facts and circumstances of the case and if some events-hints to that effect
are available, the same would validly constitute the element of mala fide."
Reference can also be made to the case law reported as Shahzada Qaiser Arfat
alias Qaiser v. The State and another (PLD 2021 SC 708).
7. I have also noticed that civil litigation is pending adjudication between the
parties as the petitioner has filed civil suits against respondent No. 2 (available at
pages No. 26 and 42) and as a counterblast complainant has lodged the instant FIR
in order to convert the civil liability into criminal one just to harass, blackmail,
humiliate and pressurize the petitioner to complete her nefarious designs, which
exercise is not permitted under the law. In the eventuality of above, the culpability
of the petitioner in offences under sections 380 and 448, P.P.C. will better be
determined by the learned trial court after recording and evaluating of evidence.
8. Although the petitioner has been found guilty during investigation but the fact
remains that the ipse dixit of police regarding guilt or innocence of accused could
not be depended upon, as the same would be determined by trial court on the basis
of evidence, yet to be collected. Guidance is sought from the case law reported as
Maulana Abdul Aziz v. The State (2009 SCMR 1210).
9. The learned Deputy Prosecutor General has fervidly argued that the petitioner
is involved in two other cases of similar nature, however, conceded that the
petitioner has not been convicted so far. Mere registration of cases without
conviction in any of them cannot be deemed sufficient to label a person as a
dangerous or a habitual criminal entailing dismissal of petition. Reliance is placed
on case of Jamal-ud-Din alias Zubair Khan v. The State (2012 SCMR 573).
10. Needless to mention here that object of pre-arrest bail is to save innocent
persons from humiliation, harassment and incarceration on the basis of false
implication. Guidance is sought from Meeran Bux v. The State and another (PLD
1989 SC 347).
11. In view of all above, this petition is accepted and ad-interim pre-arrest bail
already granted to the petitioner is hereby confirmed subject to her furnishing fresh
bail bonds in the sum of Rs.1,00,000/- (Rupees one lac only) with one surety in the
like amount to the satisfaction of the learned trial court.
12. It is, however, clarified that observations made herein above are just
tentative in nature and strictly confined to the disposal of this bail petition.
MH/A-120/L Bail confirmed.
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