Through this petition, Asim Ahmad petitioner has sought pre-arrest bail in case arising out of F.I.R. No.. 1526 of 2019 dated 10.08.2019 registered under Section 406, PPC at Police Station North Cantt., District Lahore.
2. After hearing learned counsel for the petitioner , learned counsel for the complainant, learned Deputy Prosecutor General and going through the record with their assistance it has been noticed that it is own case of the prosecution that Asim Ahmad accused was doing business of property and four years prior to the registration of instant case he asked the complainant for paying Rs.30,00,000/- (thirty lacs) because he is making a deal of property and resultantly complainant paid him said amount which has not been paid back by Asim Ahmad accused/petitioner; therefore, it is crystal clear that aforementioned amount was given by complainant and taken by petitioner/accused as loan with promise to pay back the same when his deal of property will be cleared; which is purely a civil dispute regarding non-payment of amount which was taken as loan and prima facie any offence punishable under Section 406, PPC is not made out because basic ingredient of Section 405, PPC punishable under Section 406, PPC is missing. In this regarding guidance has been sought from the dictum laid by the august Supreme Court of Pakistan in case "Rafiq Haji Usman vs. Chairman NAB and another" (2015 SCMR 1575 ), relevant portion is reproduced as under: "In case of entrustment, the money/prop erty received is to be retained for return to the giver at a later lime as opposed to a promise or contract where investment is made or money is paid for the purposes of fulfilment of a specific agreed upon purpose/contract. In such a case where money/property has been entrusted to a person, using such amount/property for any other purpose would not attract the penal consequences of Section 405, PPC ibid. For the purposes of above view, we draw support from the judgment of this Court reported as Shahid Imran v.
The State and another (2011 SCMR 1614 ), wherein it has been held "The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or property is to be retained and preserved for its return to the given and the same is never meant to be utilized for any other purpose a mere breach of a promise, agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in Section 405, P.P.C. and such a breach is nor synonym ous with criminal breach of trust without there being a clear case of entrustment."
Therefore, case of the petitioner falls in the ambit of further inquiry i.e. Section 497 (2), Cr.P.C. It goes without saying that instant FIR was registered on 10.08.2019 after filing of suit by present petitioner for restitution of conjugal rights on 29.06.2019 against Safia Asim i.e. his 18t wife, who is sister of complainant and suit for recovery of golden ornaments and money on 23.07.2019 against his aforementioned first wife and Rafaqat Ali (present complainant), etc. Furthermore when aforementioned civil transaction has been converted into registration of a criminal case by the complainant after joining hands with the police after delay of about four years then prima facie , mala fide intention on part of prosecution cannot be out rightly ruled out.
3. In view of what has been discussed above, application filed by the petitione r for grant of pre-arrest bail, is allowed , ad-interim pre-arrest bail already granted to him by this Court vide order dated 29.10.2019 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties in the like amount to the satisfaction of the learned trial Court within a period of fifteen days from today .
4. It is, however , clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition.