Said Gul Vs The State and another

Judsment Sheet

IN

JUDICIAL DEPARTMENT.

B.B,ANo.2973-P12024

Said Gul

VS

The State and another

Date of hearing 30.08.2024

Petitioner(s) by: in person with Mr. Shahid Mahmood Khan, advocate.

State by: Mr. Abdur Rauf Afridi, AAG Complainant by: Mr. Matiullah Marwat, advocate'

JUDGMENT

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IJAZ AIIWAR.J :- Accused petitioner Said Gul son of Niaz Mand seeks confirmation of ad interim pre- arrest bail granted to him vide order dated 19.08.2024 in case FIR No. 543 dated 25'07 '2024 registered under section 406 PPC at Police Station Badrashi (Nowshera).

2.Arguments of learned counsel for the parties heard and record Perused.

3.Perusal of the record suggests that the complainant had handed over the amount to the accused petition for business purpose and finding report of the ASHO, P.S Alpuri in this respect is available on record. According to the allegation of the complainant, the entrustment of money was in pursuance of business transaction, however, there is a distinction between payment/investment of money and entrustment of money or property and in view of the allegation of complainant, the case against the accused petitioner would not attract the provisions of section 4051406 PPC making the case of accused petitioner one of further inquiry. The august Supreme o'shahid Imran Vs Court of Pakistan in case titled

the State and others (2011 SCMR 1614). while dilating upon the issue held as under:

"The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money

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paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or propertY is to be retained and preserved for its return to the giver and the same is never meant to be utilized for any other Purpose. Recognition of this distinction stands clearly reflected in many cases decided by different courts in the Indo-Pak sub- continent and a reference in this respect may be to the cases of State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700), Punjab National Bank and others Y. Surendra Prasad Sinha (1994 PSC (Crl) 768), Shaukat AIi Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCT.LJ 1900), Ghulam Ali v. Javid and another (1939 PCT.LJ 507), Nga Po Seik v. Emperor (1917 Indian Cases 824) and Kornai Lal Dutta v. The State (AIR 1951 Cal 206). These precedent cases clearly show that a 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. Looked at from this perspective the allegation levelled against the petitioner regarding commission of an offence under section 406, P.P.C. surely calls for further probe at this stage.

4.In view of the facts and circumstances of the case, the dispute between the parties pertain to civil liability for which the proper forum is the Civil Court

where, according to petitioner, he has filed a civil case against the complainant and that the complainant has registered the instant FIR as a counterblast to restrain him from pursuing his civil case. He also stated that due to the fear of the complainant he cannot move freely and due to that reason, he could not joint investigation in the instant case.

5.As observed above, there exist a civil litigation between the parties in existence whereof, malafide and false implication on the part of the complainant could not be ruled out which is one of the considerations for confirmation for grant of pre- arrest bail, if the accused is otherwise entitled to bail. 0t t In case titled "Nazar Muhamamd and 2 others Vs the ), O0l2 PCrLJ 430 ) it was observed that no fruitful purpose would be served by sending the respondent accused to jail and then

release him on bail after arrest. The relevant portion of the said judgement is reproduced below:

ttconsiderations for grant of pre-arrest bail are not at all different, as far as merits of the case are concerned, from the considerations for grant of post arrest bait. The only difference, which has been highlighted in certain Judgments, is that there must be additional basis of humiliation, harassment, mala fides, intention to disgrace; - if a Person is otherwise entitled to bail, no useful purpose shall be served by putting such person firstly behind bars and then allowing him bail.- Court has to keep a balance--if a fit case for grant of bail is made out, bail before arrest should be allowed in appropriate cases."

6.In view of the above, this petition is allowed and the ad interim pre-affest bail already granted to the petitioner vide this Court's order dated 19.08.2024 is confirmed on the existing bonds.

d

Sehior Puisne Judge Announced on;

Dated. 30.08.2024 'Arnir'