1. ' AHMED ALI M. SHAIKH, J.---By this order, I intend to dispose of this Criminal Bail Application filed by the applicant Wali Muhammad Rahmoon, by which he seeks post-arrest bail in Crime No,231 of 2011 of P.S. Boat Basin, Karachi for offence under sections 420, 406, 504, P.P.C.
2. ' Necessary facts giving rise to this bail application are that on 12-6-2011, one Salahuddin Osto, lodged the report stating therein that he is a Businessman and a person namely Wali Muhammad Rahmoon (Applicant herein), who is known to his brother, came to his house and asked him to give Rs,25,00,000 (Rupees Twenty-five hundred thousand) for business purpose upon which he will pay Rs,50,000 (Rupees Fifty-thousand) per month to him as profit. Following which complainant made a written agreement with Wali Muhammad Rahmoon. Complainant further stated that he paid Rs,25,00,000 to the applicant in cash and through cheque, thereafter applicant/accused paid him profit for few months and then stopped payment. The agreement expired on 30-4-2009, therefore, the complainant demanded his principal amount and profit accrued thereon, on which applicant/accused paid him Rs,.150,000 as profit in the year 2010 and promised that he will pay the principal amount with profit in the month of January, 2011 and kept him on hopes. According to the complainant, few days earlier when his brother demanded the above amount from the applicant/accused he abused his brother and replied that forget the amount.
3. ' Learned counsel for the applicant contended that the alleged transaction between the applicant and complainant took place on 30-4-2008, whereas the F.I.R. Has been lodged on 12-6-2011. He further contended that from the contents of F.I.R. It appears that it was a civil transaction between complainant and the present applicant, which is deliberately turned into a criminal offence in order to put pressure for recovering such amount. Per learned counsel, section 406, P.P.C. Is not applicable, whereas section 420, P.P.C. Is punishable for seven years, hence the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. Learned counsel further contended that it is not alleged that applicant fraudulently obtained the money from the complainant and dishonestly misappropriated the same. He further went on to say that the dispute pertains to recovery of principle amount plus profit accrued thereon, for which complainant can approach the civil Court which is the proper forum for determining the liability etc. He lastly contended that the applicant is an Engineer by profession and due to political rivalry he has been dragged in this case.
4. In support of his contention, learned counsel for the Applicant placed reliance the following judgments: --
(i) PLD 1995 SC 34 (Trig Bashir v. State) ,
(ii) 1996 SCMR 1132 (Saeed Ahmed v. State)
(iii) 2010 SCMR 1986 (Farhat Husain Shah v. State)
(iv) 1989 PCr.LJ 507 (Ghulam Ali v. J av id)
(v) 2003 PCr.LJ 1921 (Karachi) (Ubedullah v. State)
(vi) 1999 PCr.LJ 1648 (Karachi) (Masood Baghpati v. State)
(vii) 2001 MLD 1237 (Faisal Khawaja v. The State)
5. (viii)1991 PCr.LJ 963 (Shaikh Muhammad Taqi v. State)
6. ' Conversely, learned A.P.-G. Appearing for the State and the learned counsel for the complainant opposed the bail plea of the applicant on the ground that his name finds place in the F.I.R and he has received Rs,25,00,000 from the complainant through an agreement, which was reduced into writing, but later on he refused to pay back the principal amount and profit accrued thereon. In support of their contention, learned counsel relied upon the following cases:-
(i) PLD 2000 Lahore 421 (Muhammad Yaqoob v. Senior Supdt. Of Police)
(ii) 2002 SCMR 442 (Muhammad Siddique v. Imtiaz Begum)
(iii) 2003 SCMR 573 (Afzaal Ahmed v. State)
(iv) PLD 1997 Supreme Court 545 (Imtiaz Ahmed v. State)
(v) PLD 2009 Lahore 401 (Muhammad Khan v. Magistrate Section 30)
(vi) 2009 PCr.LJ 913 (Muhammad Zaman v. State)
7. I have heard learned counsel for the parties and have examined the material available on record.
8. The applicant has been challaned under sections 406, 420 and 506, P.P.C. Apparently entire case of the prosecution depends upon documentary evidence and admittedly all the documents are in possession of the prosecution and there is no possibility of tampering with such evidence. As far as the amount allegedly received by the applicant/accused from the complainant is concerned, the same can be recovered through a competent civil Court. It is settled principle of law that all moral wrongs are not necessarily criminal offences and every broken promise, thus, is not a criminal offence. With profound respect, law relied upon by the learned counsel for the complainant is distinguishable and not helpful to the case in hand. Muhammad Yaqoob's case, reported in PLD 2000 Lahore Page 421 pertains to quashment of F.I.R, which has no relevancy with the case in hand.
9. Whereas in Afzal Ahmed's case, reported in 2003 SCMR 573, bail was refused to the applicant as the applicant was apprehended with 600 grams of heroin. In the case of Muhammad Siddique (Supra), the Apex Court dismissed the petition on the ground that in review jurisdiction neither the merits can be re-agitated nor re-argued. The accused in the said case was challaned under section 452, P.P.C. And section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In Imtiaz Ahmed's case, reported in PLD 1997 SC 545 bail was declined to the accused as they were serving in Prisons Department and there was sufficient material against them that they actually participated in making possible the prisoners to escape from the jail. In Mohammad Khan's case reported in PLD 2009, Lahore 401, the accused was booked under section 489-F, he was arrested and produced before the concerned Magistrate with a request for his judicial remand. The learned Magistrate turned down the police request and discharged the accused and the order of Magistrate was set aside by the High Court. In Muhammad Zaman's case, reported in 2009 PCr.L.J, 913, allegations against the accused were breach of trust and cheating, which resulted ' in depriving the complainant of an amount of Rs,700,000 with excuse that he shall provide him motorcycle on subsidized rate. Whereas in the case in hand it appears that both parties viz. Complainant and applicant .Made Agreement of Partnership and made investment in a project/business. I have also examined the terms and conditions of the Agreement to Partnership.
10. Bare perusal of Para-2 of the terms and conditions of the agreement reveals that duration of the project/business was for one year commencing from 1-5-2008 and ending on 30-4-2009 but the F.I.R. Was lodged on 12-6-2011 with an inordinate delay and even the complainant did not furnish any explanation in this regard. Even the case of the applicant does not fall within the exceptions laid down by their Lordships in Tariq Bashir's case. It is repeatedly held by. Our Superior Courts in various judgments that an accused cannot be kept behind the I bars indefinitely even in heinous offences.
11. The offence under sections 406, 420 and 506 did not fall within the prohibitory clause of section 497(1), Cr.P.C. And in likewise cases basic rule is bail not jail. In light of dicta laid down by their Lordships in Faisal Khawaja's case (Supra) whereby a Division Bench of this Court granted bail to the accused in somewhat similar circumstances. For the foregoing reasons and the dicta laid down by Apex Court in Tariq Bashir's case (Supra) I am of the considered view that the applicant is entitled to the grant of bail.
12. ' These are the reasons in support of my short order dated 29-7-2011, whereby the applicant was granted bail on furnishing two solvent sureties in the sum of Rs,10,00,000 (Rupees One-million) each and PR Bond in the like amount to the satisfaction of the Nazir of this Court.
13. ' The observations made in the above order are tentative in nature and will not prejudice the case of either party.