' ATIR MEHMOOD, J. --- Through this criminal miscellaneous petition under Section 498, Cr.P.C., petitioner Muhammad Boota has sought his pre-arrest bail in case F.I.R. No, 1170/2013, dated 04.11.2013 for the offence under Section 406, P.P.C. Registered with Police Station Kahna, Lahore.
2. As per prosecution story contained in the F.I.R. The precise allegation against the petitioner is that an amount of Rs, 1,55,000/- was outstanding against Muhammad Asghar and Muhammad Boota (the petitioner) as they purchased 150-maunds of paddy from the complainant and promised to pay the amount within two months. After elapsed of two months the accused asked the complainant to receive the said amount from the petitioner, who told them to keep the said amount as a trustee. According to the F.I.R. Two months from the registration of the case the complainant asked for the return of the said amount which was not given to him on one pretext or the other and ultimately the accused refused to return the same.
3. I have heard the arguments put forth from all corners and also perused the record of the case.
4. The learned APG has submitted that the provisions of Section 406, PPC are not attracted in this case. From the bare perusal of the F.I.R. a business transaction is established between the parties.
The contention of the learned counsel for the complainant that the total amount was Rs, 1,80,000/- out of which Rs, 25,000/- has already been paid and Rs, 1,50,000/- is outstanding is not in consonance with the contents of the FIR. There is another application filed by the complainant with the Incharge Police Post Jia Bagha, Lahore -which reflects that there is an outstanding amount of Rs, 1,65,000/-. According to the record, there are two receipts executed by the complainant regarding receiving of an amount of Rs, 29,000/- as well as Rs, 10,000/- from the petitioner, Muhammad Boota. This receipt shows that after receiving the amount of Rs, 10,000/-an outstanding amount was Rs, 10,000/- which was to be paid by Muhammad Boota till 03.09.2013. All these facts of receiving of the said amount have been concealed by the complainant, which makes the case of the petitioner that of further inquiry. The co-accused of the petitioner namely Shafique, Muhammad Asghar have already been bailed out. The investigation of the case has already been completed and the petitioner is no more required for further investigation purposes.
Sending him behind the bars will not serve any useful purpose. However after recording of the evidence if he is proved guilty he will face the consequences but if he is subsequently acquitted from the charge by the competent Court then the period of incarceration will amount to punishment without conviction.
5. For the afore-mentioned reasons, this criminal miscellaneous petition is accepted and the pre- arrest bail already granted to the petitioner vide order dated 09.01.2014 is hereby confirmed subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (rupees one lac only) with one surety in the like amount to the satisfaction of learned Trial Court.
6. It is, however, made clear that the observations made herein above are just tentative in nature, meant only for disposal of the case in hand and will have no bearing on the case of either party at trial stage. Ad-interim pre-arrest .