2017 Y L R Note 10

[Lahore (Multan Bench)]

Before Mushtaq Ahmed Tarar, J
Hafiz MUHAMMAD NADEEM and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.1989-B of 2015, decided on 18th June, 2015.
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail grant of---
Further inquiry---Entrustment, absence of---Business transaction---False implication,
probability of---Complainant alleged that he had purchased pesticides from accused after
payment of certain amount, and said medicine was lying with accused as Amanat or trust, but
accused had sold out the same to some other customer causing loss to him---Held, that
complainant had paid amount to accused for purchase of pesticides, and not as Amanat or
trust---No entrustment of amount or of pesticides by complainant to accused existed---Such
was a business transaction between complainant and accused---Probability of false
implication could not be ruled out---Present case was, prima facie, matter of further inquiry--
-Bail application was allowed accordingly. [Para. 6 of the judgment]
Khayyam Bilal v. The State and others 2014 PCr.LJ 39; Samina Ashraf v. The State
and another 2013 YLR 1678; Ghulam Ali v. The State and another 2013 MLD 891;
Muhammad Aslam Bajwa v. The State and another PLD 2004 SC 780; Shahbazuddin
Chaudhry v. The State PLD 2004 SC 785; Khadim Hussain v. The State 2004 SCMR 1755;
Usman Noor v. The State and another 2011 YLR 686; Rana Muhammad Arshad v.
Muhamamd Rafique and another PLD 2009 SC 427; Khalil Ahmed v. The State and another
2013 PCr.LJ 389; Atiq Niazi v. The State and others 2013 PCr.LJ 1145; Mst. Rukhsana Iqbal
v. The State and others 2015 UC 276; Munawar Hussain v. The State 2003 SCMR 1658 and
Muhammad Zaman v. The State 2009 PCr.LJ 913 ref.
Umair Aslam v. Station House Officer and 7 others 2014 PCr.LJ 1305 and Shahid
Imran v. The State and others 2011 SCMR 1614 rel.
Petitioners on Interim Bail in person with Muhamamd Siddique Mughal for Petitioners.
M. Hassan Khawar and Rana Maqbool Hussain for the Complainant.
Ahmed Raza Chaudhry, A.P.G. for the State.
ORDER
MUSHTAQ AHMED TARAR, J.---At the very outset learned counsel for the petitioners
states that he wants to withdraw this petition to the extent of petitioner Hafiz Muhammad
Nadeem. Resultantly this petition to the extent of petitioner Hafiz Muhammad Nadeem is
dismissed being withdrawn.
2. Usman Amjad petitioner seeks anticipatory bail in case FIR No.165/2015 dated
25.2.2015 registered under section 406, P.P.C. at Police Station Farid Town, District Sahiwal.
3. Learned counsel for the petitioner contended that the petitioner is innocent and has
been falsely implicated in this case; that neither the petitioner has committed any criminal
breach of trust nor the provisions of section 406, P.P.C. are attracted in this case; that in fact
the complainant purchased medicines of Rs.4,00,000/- from the petitioner and only handed
over one cheque of Rs.1,00,000/- which was also dishonoured and to avoid the payment of
the petitioner this false case has been registered; that there is a delay of about 05 months in
lodging the FIR which fully makes the prosecution case doubtful; that no amount was handed
over by the complainant to the petitioner as trust/Amanat and in this way no case under
section 406, P.P.C. is made out. He placed reliance upon Umair Aslam v. Station House
Officer and 7 others (2014 PCr.LJ 1305), Khayyam Bilal v. The State and others (2014
PCr.LJ 39), Samina Ashraf v. The State and another (2013 YLR 1678), Shahid Imran v. The
State and others (2011 SCMR 1614) and Ghulam Ali v. The State and another (2013 MLD
891).
4. Conversely learned A.P.G assisted by learned counsel for the complainant opposed the
bail application and argued that the provisions of section 406, P.P.C. are made out as the
medicines of the complainant were with the petitioner as `Amanat'; that in the application
before the learned Addl. Sessions Judge the petitioner has not raised any mala fide against the
complainant for false implication, hence, he cannot take this plea at this stage; that delay is
not fatal in such like cases. Learned counsel for the complainant has placed reliance upon
Muhammad Aslam Bajwa v. The State and another (PLD 2004 Supreme Court 780),
Shahbazudddin Chaudhry v. The State (PLD 2004 Supreme Court 785), Khadim Hussain v.
The State (2004 SCMR 1755), Usman Noor v. The State and another (2011 YLR 686), Rana
Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427),
Khalil Ahmed v. The State and another (2013 PCr.LJ 389), Atiq Niazi v. The State and
others. 2013 PCr.LJ 1145, Mst. Rukhsana Iqbal v. The State and others. (2015 UC 276),
Munawar Hussain v. The State (2003 SCMR 1658) and Muhammad Zaman v. The State
(2009 PCr.LJ 913).
5. Arguments heard, record perused and precedents referred considered.
6. As per record this case was registered on 25.2.2015 against the petitioner Usman
Amjad and his co-accused Hafiz Muhammad Nadeem on the application of Abdul Wahid
with the allegations that the accused persons deal in pesticides; that in June, 2014 the accused
persons came to his house and persuaded him that they will arrange pesticides and asked him
to pay money, whereupon in the presence of Kashif Hameed and Faqir Muhammad he handed
over the cheque of Rs.3,00,000/- to the accused; that the petitioner got encashed cheque on
9.6.2014 and promised to supply the pesticides within one week; that later on when
complainant approached the petitioner, the petitioner replied that the pesticides are lying with
him as `Amanat', the same will be supplied tomorrow. Finally the complainant stated that
later on the accused persons sold his pesticides to another person and he sustained loss of
Rs.7,00,000/- as his crop was damaged. It is clear from the FIR that allegedly the
complainant paid Rs.3,00,000/- to the petitioner for the purchase of pesticides and the said
amount was not handed over to the petitioner as `Amanat' or trust. The complainant has not
entrusted the said amount to the petitioner for investment and it was payment for purchase of
pesticides. There is no entrustment of the amount or of pesticides by the complainant to the
petitioner and the conetents of FIR show that there was business transaction for sale and
purchase of pesticides between the complainant and the petitioner. Therefore, in these
circumstances prima facie the applications of section 406, P.P.C. in this case against the
petitioner becomes matter of further inquiry in view of law laid down by the Hon'ble
Supreme Court of Pakistan, in the judgment reported as Shahid Imran v. The State and others
(2011 SCMR 1614) and judgment of this Court reported as Umair Aslam v. Station House
Officer and 7 others (2014 PCr.LJ 1305) and the probability for false implication of the
petitioner in this case cannot be ruled out. In this view of the matter the petitioner becomes
entitled for the concession of pre-arrest bail. Resultantly this petition is accepted and interim
pre-arrest bail already granted to the petitioner Usman Amjad is confirmed, subject to
furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount, to
the satisfaction of learned trial Court.
SL/M-216/L Bail granted.