MUHAMMAD TARIQ NADEEM, J. Through this petition under section 497(5) of Cr.P.C., the petitioner seeks cancellation of pre-arrest bail granted to respondents Nos.1 and 2 by the learned Additional Sessions Judge Gojra vide order dated 17.06.2021 in case FIR No.437/2021, dated 03.05.2021, under section 406, P.P.C., registered at Police Station Saddar Gojra District Toba Tek Singh.
2. Precise allegations against respondents Nos.1 and 2 according to FIR are that the petitioner entrusted them land as his tenants, respondents have grown fodder crop being tenants of the petitioner and sold out the fodder/agricultural produce of land without giving share of petitioner.
Respondents Nos.1 and 2 misappropriated complainant's due share for Rabi 2020, amounting to Rs.2,70,000/-. When confronted, the accused persons/respondents Nos. 1 and 2 admitted their guilt before the PWs Javed Iqbal and Khalid Javed and sought some time to pay the complainant's share. They deferred the matter with one and another pretext and lastly promised to pay on 14.3.2021 but in vain, hence this FIR.
3. It is the contention of the learned counsel for the petitioner that the impugned order is perverse, illegal and based on wrong premises of law and facts, which is liable to be set aside.
4. Heard, record perused.
5. At the very outset, I would like to reproduce the relevant part of the bail granting order in favour of respondents Nos.1 and 2 as under:- "6. Perusal of record show that though the petitioners are named in the FIR, however, the bare perusal of contents of FIR, even if admitted as gospel truth, shows that the real dispute between the complainant and petitioners is over distribution of agricultural produce between landlord and tenants and the same is of purely civil nature as the complainant, as per contents, of FIR, handed over the possession of his land to the petitioners as tenant and the only allegation against the petitioners is that they further sold out the agricultural produce/fodder without distributing the share of complainant to him, therefore, no question of entrustment as envisaged under section 405, P.P.C. is involved and the civil matter has malafidely been converted into criminal nature, therefore, this bail application of the accused/petitioners is hereby accepted and ad-interim pre- arrest bail already granted to the accused/petitioners namely Umer Hayat and Muhammad Afzal is hereby confirmed..."
Bare perusal of the aforesaid operating part of the order dated 17.6.2021, passed by the learned Additional Sessions Judge, I find no legal infirmity in the said order, which even otherwise, does not call for any interference by this Court. I observed that after going through the narration of FIR and evidentiary material collected by the Police and presented before the Court, offence. under section 406, P.P.C. is not made out. At the most the dispute between the parties is of civil nature and the petitioner/complainant has tried to get resolved the same through criminal proceedings which cannot be allowed. It has been well settled by now to attract the section 406, P.P.C. entrustment of property is sine qua non which is lacking in this case. For the facilitation, section 405, P.P.C. is hereby reproduced:- "405. Criminal Breach of Trust. Whoever, being in any manner, entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
It is not a case of prosecution that the land in dispute was entrusted to the respondents Nos. 1 and 2, rather same was given to them on tenancy for the years 2019-2020. The petitioner has a remedy in the shape of filing a suit for recovery of produce/share under the Tenancy Act. Even otherwise, broken promise does not constitute a criminal offence. A reference in this respect may be made to the case of "Shahid Imran v. The State and others" (2011 SCMR 1614).
6. Needless to say that considerations for grant of bail and those for its cancellation are entirely different. Ordinarily, the grounds which are taken into consideration for cancellation of bail are:-
(i) that the applicant has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses;
(ii) that there is likelihood of witnesses being won over and their evidence being tampered with;
(iii) that there is likelihood of repetition of the commission of the crime which the accused had allegedly committed;
(iv) that the accused was likely to abscond; and
(v) that the order granting the bail was arbitrary, capricious and against the evidence with the prosecution.
None of the above mentioned grounds is available to the complainant/petitioner calling for cancellation of bail granted to respondents Nos.1 and 2. It is nowhere mentioned in the petition that respondents Nos.1 and 2 have misused the bail. Once the bail has been granted on merits by the Court of competent jurisdiction, very strong and exceptional circumstances are required to cancel the same, which are not available to the petitioner in this case. Guidance is sought from case law titled as "Abdul Rasheed Khan v. Zahoor Ahmed Malik and others" (PLD 2011 SC 210).
7. Learned counsel for the petitioner has placed reliance upon case laws titled as "Sami Ullah and another v. Laiq Zada and another" (2020 SCMR 1115), "Mir Muhammad and others v. NAB through Chairman and others" (2020 SCMR 168), "Gulshan Ali Solangi and others v. The State through P.G. Sindh" (2020 SCMR 249) and "Muhammad Yaqoob v. Senior Superintendent of Police Gujranwala and 2 others" (PLD 2000 Lahore 421). With great respect and reverence, supra mentioned case laws are not applicable to the peculiar circumstances of instant case.
8. Since learned counsel for the petitioner has not been able to point out any solid reason for cancellation of bail, therefore, this petition having no merits, is dismissed.