' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Apprehending his arrest at the hands of police, Ghulam Ali petitioner, by means of instant petition, seeks his pre-arrest bail in case F.I.R. No, 449, dated 17-7- 2012, offence under section 406, P.P.C., registered at Police Station Lari Adda, Lahore, on the complaint of Rasool Shah son of Sharif Shah, complainant/respondent No,2.
2. Prosecution story in brief, as per contents of the crime report, is that the petitioner by way of committing criminal breach of trust usurped/embezzled an amount of Rs, 7,50,000 of the complainant.
3. Learned counsel for the petitioner while opening his arguments submits that the petitioner is quite innocent and has falsely been involved in the instant case by the complainant for satisfying ulterior motives, which even otherwise was lodged with a delay of four months and eight days without plausible explanation. Learned counsel for the petitioner vehemently contends that story contained in the crime report, on the face of it, does not sound sense. Adds that no property was entrusted to the ' petitioner, hence ingredients of section 405, P.P.C., are not satisfied as such provisions of section 406, P.P.C., are not made out from the facts of the case. Even otherwise, learned counsel for the petitioner urges, if the prosecution version is presumed to be true as it is, the prosecution case is purely of civil nature, therefore, in view of mala fide of the complainant coupled with the fact that the petitioner is first offender, he is entitled to the extra-ordinary relief of pre-arrest bail.
4. Learned Deputy Prosecutor General (sic) the scheme of law advanced by learned counsel for the petitioner with the submission that prima facie facts of the case do not attract the provisions of section 406, P.P.C. Further submits that during the course of investigation the version of the complainant qua an amount of Rs,5,00,000 was found false and dispute between the parties is only over an amount of Rs,2,00,000 and that's too in pursuance of business transaction.
5. Learned counsel representing the complainant on the other hand vehemently opposes the contentions raised by learned counsel for the petitioner. Learned counsel submits that the petitioner by way of committing criminal breach of trust usurped/embezzled huge amount of the complainant, hence he is fully connected with the commission of offence, therefore, he is not entitled to the extra-ordinary relief of pre-arrest bail, which even otherwise is to be used sparingly.
6. I have heard the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as, learned Deputy Prosecutor General and gone through the record available on file.
7. Bare perusal of the record reflects that the F.I.R. Was lodged with a delay of four months and eight days without plausible explanation. Moreover, record further reveals that the entrustment was in pursuance of business transaction, whereas, law clearly recognizes a distinction between payment/investment of money and entrustment of money or property. Hence prima fade facts of the case do not satisfy the ingredients contained in section 405, P.P.C. As such provisions of section 406, P.P.C., do not attract to the facts of the case. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Shahid Imran v. The State and others 2011 SCM R 1614; wherein it has been held as under:-- "---S. 405---Criminal breach of trust---Violation of agreement/promise---Precedent cases--- Ratio decidendi---A mere breach of promise, agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in said. Section 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."
' Similar view was affirmed by Hon'ble Supreme Court of India in the cases of State of Gujarat v.
Jaswa nt-Jal Nathalal. (AIR 1968 Supreme Court 700) and Punjab National Bank and others v.
Surrendra Prasad Sinha (1994 PSC(Crl.) 768.
8. During the course of arguments on Court's query Investigating Officer submitted that according to his investigation the allegation qua Rs,5,00,000 was found false and dispute between the parties is only to the extent of Rs,2,00,000 and that's too over business transaction, hence, prima facie the matter pertaining to civil liability the proper forum for its decision would be civil court.
9. There is no cavil to this proposition that mala fide is sine qua non for grant of pre-arrest bail but at the same time it has been held by the august Supreme Court of Pakistan in its ratio decidendi in the case of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) that the Court can also evaluate the element of malicious from the facts and circumstances of the case. Similar view was further affirmed in the case of Syed Muhammad Firdaus and others v. The State (2005 SCM R 784).
Needless to mention that liberty of a person is a very valuable right guaranteed under the Constitution and the same cannot be denied only on the basis of bald allegations.
10. In such circumstances of the case I am of the firm view that sending the petitioner behind the bars would serve no useful purpose. Therefore, by allowing this petition this court is persuaded to confirm ad interim bail already granted to Ghulam Ali/petitioner in terms of order dated 9-10-2012 subject to his 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. 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.