' SHAHID BILAL HASSAN, J.---Petitioner seeks after arrest bail in case F.I.R. No,465 of 2012 dated 16-9- 2012 registered under sections 406, 420 read with section 506-B of the Pakistan Penal Code, 1860 at Police Station City Ahmedpur, District Bahawalpur.
2. Allegations in brief as contained in the Crime report against the petitioner are that she along with other co-accused misappropriated gold ornaments weighing 21-tolas and 8-masha belonging to the complainant and on demand there are threats by the petitioner's side to the complainant of dire consequences.
3. The learned counsel for the petitioner has maintained that the provisions of section 406 of P.P.C.
Are not attracted from the bare reading of the F.I.R. And if at all any grievance of the complainant, against the petitioner is made out i,e, of civil/contractual nature and in case the complainant is aggrieved he may approach the civil courts concerned so as to get his grievance redressed if so advised.
4. On the other hand, the learned D.P.G. Assisted by the learned counsel for the complainant has vehemently opposed the bail application and stated that all offences levelled against the petitioner are made out and the prosecution evidence in this regard is intact. Since there has been misappropriation of gold ornaments hereinafter, therefore, the petitioner is not entitled to the concession of bail after arrest.
5. Arguments heard. Record perused.
6. Before discussing this petition on merits it is important to understand and comprehend section 405 of the P.P.C. As the case of the prosecution rests on section 406 P.P.C. Bare perusal of section 405 of the P.P.C. States that if a person gives money to another person for the purpose of investment in business and equal amount of money along with profit was to be returned by the latter such business transaction could not attract the provisions of section 405 of the P.P.C., such transaction for all intents and purposes was not entrustment of property but simply one of investment in property. The said view has teen taken by this Court in the case of "SHAUKAT ALI SAGAR v. STATION MOUSE OFFICER, POLICE STATION BATALA COLONY, FAISALABAD and 5 others" (2006 PCr.LJ 1900), "MUHAMMAD AKRAM LONE SAEED v. THE STATE" (2008 PCr.LJ 1351), "MUHAMMAD RIZWAN v.
THE STATE" (2008 PCr.LJ 2169), "ZAHID JAMEEL v. S.H.O. And 2 others" (2008 YLR 2695) and "SAJJAD AZMAT CHAHAL v. THE STATE and another" (2011 M LD 459). Now coming to the prosecution story of this case, according to the F.I.R. As narrated by the complainant it was settled that the alleged ornaments i,e,21-tolas and 8-masha were given to the petitioner as investment against which profit was to be given to the complainant's side by the petitioner. It was not entrustment to hold a property in question in a fiduciary capacity. Therefore, I am in agreement with the learned counsel for the petitioner when he says that the provisions of section 406 are not made out from the bare reading of the F.I.R., as no entrustment was made by the complainant's side. Another admitted aspect of the case is to the effect that the petitioner has a suckling baby namely Mah Noor who was born on 10-4-2012 and the petitioner is behind the bar in this case since 9-10-2012. After arrest she joined the investigation during which no recovery was got effected from the petitioner. It is an admitted fact that the petitioner is mother of a daughter who is a suckling baby aged one year and approximately two months old. Reliance in this regard has been made by the learned counsel for the petitioner upon "Mst. NUSRAT v. THE STATE" (1996 SCM R 973), wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:-- "Suckling child of accused was kept with mother in jail obviously for his welfare---Concept of "welfare of minor" was compatible with jail life---Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it was in the interest of justice as well as welfare of minor if the mother was released from jail.---"
Similar view has been adopted by this Court in a number of cases.
' Reliance has also been placed upon "GHULAM SAKINA and others v. THE STATE" (1991 PCr.LJ 1316), "Mst. IRSHAD alias Mst. WAZIRAN v. THE STATE" (2000 PCr.LJ 613), "Mst. LATIFAN BIBI v. THE STATE" (2006 PCr.LJ 251), "THE STATE v. FARZANA KAUSAR" (2008 YLR 2600), "NASREEN BIBI v. THE STATE" (2011 YLR 1028), and "Mst. KABELA v. THE STATE" (2011 YLR 2975). In all the said verdicts of this. Court, a mother of a suckling baby has been given the right to the concession of bail.
' Apart from the said, on the face of it the petitioner has not committed any crime with the complainant and is not a witness to the entrustment that he has alleged according to the prosecution story. Though incomplete challan has been submitted in the trial court but there is yet to be any progress, which accordingly is at initial stage and as such in absence of any exceptional circumstances grant of bail to an accused is a right, which should be given to the accused and refusal is an exception as held by the Hon'ble Supreme Court of Pakistan in "ZAFAR IQBAL v.
MUHAMMAD ANWAR and others" (2009 SCM R 1488)', "RIAZ JAFAR NATIQ v. MUHAMMAD NADEEM DAR and others" (2011 SCM R 1708) and "TARIQ BASHIR and 5 others v. THE STATE" (PLD 1995 SC 34).
7. For what has been discussed above and particularly keeping in view the fact that the petitioner is a mother of .Suckling baby while following the dictum laid down by the Hon'ble Supreme Court of Pakistan in "Mst. NUSRAT (supra) and the case lodged against her falls within the ambit of further inquiry as no exceptional ground has been made out by the prosecution so as to deny the petitioner her liberty as she is behind the bars since 9-10-2012 i,e, approximately seven months and there is no likelihood of the conclusion of trial in the near future, therefore, this petition is accepted and the petitioner is admitted to after arrest bail till the final decision of the case subject to furnishing bail bonds in the sum of Rs,10,00,000 (rupees one million only) with one surety in the like amount to the satisfaction of the learned trial court.
8. Before parting with this order, it is however, clarified that the reasons given in this order are tentative in nature and it will have no effect upon the merits of the case in accordance with law.