' SAGHEER AHMAD QADRI, J.---Khalid Mehmood, petitioner has moved this petition for the grant of post arrest bail in case F.I.R. No,205 dated 18-5-2011 registered at Police Station City, Chakwal under section 406 PPC.
2. The F.I.R. Was lodged by one Ch.Arshad Mehmood son of Ch. Muhammad Nawaz on 18-5-2011 mentioning that his elder brother Ch. Qaisar Mehmood came from Dubai on leave and entered into an agreement to sell dated 13-12-2010 with Zafar Iqbal and his brother Khalid Mehmood (present petitioner) in respect of 22 marlas of land situated at Mohallah Takht Abad in consideration of Rs,.23,76,000 that his brother in presence of Ishtiaq Ahmed and Haq Nawaz paid Rs,2,00,000 as earnest money and it was agreed that after inspecting the spot remaining amount shall be paid on 13-12-2010; that complainant and his brother entered into agreement and handed over the amount as trust to the accused and when subsequently spot was inspected it transpired that the land actually belonged to Railway Department and not owned by the accused; that complainant asked them to return the amount and they delayed the matter and subsequently his brother Ch. Qaisar Mehmood went back to Dubai who has executed special power of attorney in favour of the complainant for pursuing the matter; that accused were not paying back the said amount which they procured by playing fraud and misrepresentation, therefore, action be initiated against them.
On this report the instant case as mentioned under section 406, P.P.C. Was registered.
3. Learned counsel for the petitioner contends that the allegations against the petitioner are false, he has not committed any offence; that actually petitioner and his brother Zafar Iqbal entered into a transaction with the complainant and his brother Ch.Qaisar Mehmood for the sale of 22 marlas of land and for that purpose vide agreement dated 31-12-2010 the contents of which if seen it was purely a civil transaction stipulating time and period for the payment of the remaining consideration and as allegedly in compliance of that agreement the petitioner had to hand over the possession of the land; that the complainant himself did not comply with his part of the agreement and with the connivance of the police as Bwell as Halqa Patwari converted this civil transaction into criminal act which otherwise is not made out; that the petitioner was ready to comply with his part of the agreement and for that purpose he obtained the Revenue Records, copies of which are annexed with the bail application; that instead getting performed the agreement complainant has lodged the instant case with mala fides. Even otherwise offence under section 406, P.P.C. Is maximum punishable upto 7 years R.I. Which offence does not fall within the prohibitory clause of section 497, Cr.P.C.; that in such like cases grant of bail is a rule and refusal an exception. Prayed that the petitioner who has been arrested, undergone the process of investigation and is sent to judicial lock up be released on bail as his co- accused has already been granted the same concession.
4. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed this petition on the grounds that petitioner deceived the complainant and his brother by giving fake details of the property/land owned by them; received Rs,2,00,000 as earnest money and when subsequently that property/land was checked it transpired that the same did not belong to the petitioner and his brother Zafar Iqbal; that Rs,2,00,000 was entrusted to the petitioner and he committed breach of trust, in the circumstances, the offence alleged against him is made out. Learned counsel for the complainant argued that no doubt the offence does not fall within the prohibitory clause of section 497, Cr.P.C. But it is non-bailable offence as it is not necessary in each and every such like case to grant bail in routine. While relying on Muhammad Rauf v. The State 2000 YLR 1911 Muhammad Irshad and others v. Amanat Ali and another (2004 SCMR 1375), Mrs.Ghazala Parveen v. Sadiq Daniel and 18 others (2010 YLR 1275), Lal Hussain v.
Muhammad Akber and 2 others (1995 PCr.LJ 946) and Abdul Majid v. The State (2003 M LD 194) prayed that this bail petition be dismissed. I have heard the learned counsel for the parties and perused the record.
6. Admittedly the parties entered into agreement to sell dated 23-12-2010 in respect of sale/purchase of land in consideration of Rs,23,76,000 out of which Rs,2,00,000 was paid to the petitioner as earnest money. As it is alleged that subsequent to that agreement the complainant found that the land subject-matter of the agreement of sale was not in the entitlement of the petitioner-accused and then he demanded back earnest money and on refusal the instant case was registered. Admittedly the amount of Rs,2,00,000 was transferred to the petitioner as a result of an agreement of sale in respect of the land, therefore, prima facie it is not entrustment rather a transaction through an agreement the performance of which can be sought by filing the civil suit.
As this question relates to the merits of the case, therefore, suffice to observe mentioned above.
7. Any how as the offence under section 406, P.P.C. Is maximum punishable upto 7 years R.I. With fine and the same in the circumstances, does not fall within the prohibitory clause of section 497, Cr.P.C. And in such like cases grant of bail is a rule and refusal an exception. Therefore, respectfully while relying on Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.