' MAHMOOD AHMAD BHATTI, J.---The petitioners seek the grant of anticipatory bail in case F.I.R.
No,375 of 2013 dated 20-8-2013 registered under section 406 P.P.C. At Police Station Noor Shah, District Sahiwal.
2. The allegation against the petitioners is that they misappropriated all the belongings of their uncle, Muhammad Siddique, who died issueless, but left behind landed property as well as huge movable properties, including saving certificates, cash of Rs,6,00,000 a pistol, two buffaloes, cots, stitched and unstitched clothes, iron boxes, trunks and electric fans etc.
3. Mr. Muhammad Usman Sharif Khosa Advocate, learned counsel for the petitioners contends that the petitioners have been involved in the case falsely; that no offence under section 406 P.P.C. Is made out; that the complainant who is the real sister of late Muhammad Siddique has already instituted a civil suit for declaration and recovery of money against the petitioners, and, therefore, the criminal prosecution is just an attempt on her part to turn an alleged civil liability into a criminal one.
4. Rana Muhammad Asif Saeed Advocate, learned counsel for the complainant has opposed the grant of anticipatory bail to the petitioners on the ground that this extraordinary relief is available only to innocent persons, who are involved maliciously or where the prosecution is tainted with mala fides. He submits that the civil suit instituted by the complainant relates to the saving certificates, which were got encashed by the petitioners, but the instant F.I.R. Pertains to the misappropriation of both the saving certificates and number of articles detailed in the F.I.R., in addition to the misappropriation of a cash amount of Rs,6,00,000. He puts up the argument that the petitioners have salted away lacs of rupees left -by Muhammad Siddique deceased; that recovery of pistol, buffaloes, cots, iron boxes, trunks, electric fans and clothes is yet to be effected from the possession of the petitioners and that if the petitioners were admitted to bail, the investigation would be hampered.
5. Mr. Shoukat Ali Ghouri, learned Additional Prosecutor-General representing the State did not oppose the confirming of the pre-arrest bail to the petitioners. He candidly stated that a civil dispute is being transformed into a criminal one. According to him, civil courts are there to resolve the dispute raised in the complaint lodged by Mst. Raiban Bibi. He also expressed his misgivings about the registration of the case under section 406 P.P.C.
6. Arguments heard. Record perused.
7. It is self-evident that the complainant, Mst. Raiban Bibi and the petitioners are legal heirs of Muhammad Siddique, who died issueless. Upon his demise on 28-5-2013, they appear to have made claim to the bequest left by him. Ostensibly, they kept on sorting out the issues for about three months, but when they could not arrive at a settlement, Mst. Raiban Bibi lodged the complaint with Police Station Noor Shah to pressurize the petitioners into submitting her demands and conceding to her claim. Three months inordinate delay in reporting the matter to the police is a reflection on the case set up by her. On the one hand, this can only be ascertained after holding a full -fledged trial by a Court of law as to what was owned and left by Muhammad Siddique by way of his legacy/bequest, and, on the other, it would be too early to jump to the conclusion that the petitioners are guilty of an offence under section 406, P.P.C. It would also take time to determine as to whether the petitioners had had dominion over the articles in the lifetime of Muhammad Siddique deceased alleged to have been appropriated. In short, misappropriation of a joint property by another co-sharer is a complex issue of law. Therefore, at this stage I am of the tentative opinion that apparently the provisions of section 406, P.P.C. Are not attracted to the facts and circumstances of the case. I am also inclined to agree with the learned counsel for the petitioners that a civil liability is being turned into a criminal one, and this furnishes the basis of mala fides with which the prosecution has been launched.
8. For what has been stated above, the ad interim pre-arrest bail granted to the petitioners by this Court by order dated 4-4-2014 is hereby confirmed subject to their furnishing bail/surety bonds in the sum of Rs,1,00,000 (Rupees One Hundred Thousand only) each with one surety each in the like amount to the satisfaction of learned trial Court.
9. It is made clear that this is tentative assessment of the material produced before the court for the purpose of deciding the bail application. Any observation made herein would not have any bearing on the trial of the case, which shall be decided on its own merits.