Petitioners (Phaphi alias Fatima) and Mst. Shahnaz Bibi have sought their pre- arrest bail in case bearing FIR No.1278/2024, dated 21.11.2024, for offence under Section 406 and 420 PPC, registered with Police Station Satellite Town, District Sargodha, after refusal of the same by the Court of learned Additional Sessions Judge, Sargodha vide order dated 21.12.2024.
2. The prosecution story as unfolded in the FIR by complainant was that one year back one Muhammad Younas, father of accused namely, Shahnaz Bibi and Fatima came across with Muhammad Taimoor (complainant), who told that his two daughters were unmarried and he wanted to get them married, whereupon father of the complainant replied that he was having two sons who have yet not been married. Nikhah of complainant and his brother Kamran was solemnized with the accused persons (Shahnaz and Phaphi alias Fatima/petitioners) in the chamber of an Advocate. Complainant gave one golden ring each to both the above accused.
Shahnaz accused made a demand of Rs. 190,000/- from the father of complainant as expenses for marriage ceremony, whereupon father of complainant paid the above amount to Shahnaz accused in the presence of Amir Shahzad son of Aslam and Kamran son of Malik Sher Zaman at House No.423 Street No.7 Chatha Town Sargodha. She/ Shahnaz promised to return the said amount at earliest and thereafter stopped to meet with complainant. The accused persons misappropriated the golden rings and an amount of Rs.190,000/- and also issued threats of dire consequence to the complainant. The complainant came to know that the accused persons have already deprived various persons of heavy amounts on the pretext of marriage
3. The bail was sought mainly on the grounds that initially the FIR was chalked out for offence under Section 420 PPC, which was bailable, but later an offence under section 406 PPC was substituted for some out of mala fide and to make the offence as non-bailable; the occurrence allegedly took place one year back, as such above inordinate delay was sufficient to make the prosecution story as highly doubtful; petitioner Shahnaz had instituted a petition under Sections 22-A and 22-B Cr.P.C. against the police officials of Police Station Satellite Town Sargodha, whereupon a criminal case was ordered to be registered against Affan, Sub Inspector through order dated 11.06.2024; the above order was challenged by the Sub Inspector before this Court and his writ petition was still pending, as such police in order to get the above dispute settled with the petitioners and make the score equal, have victimized them through this false and frivolous case; all the above said and weak palpable circumstances are sufficient to make the present case that one of further inquiry ; arrest of the petitioners is being sought for ulterior motives; petitioners would face humiliation and insult at the hands of police in case they are arrested.
4. Learned Deputy Prosecutor General with the assistance of learned counsel for the complainant opposed the present petition vehemently and vigorously. They added that the petitioners are habitual offenders; they have previous involvement in alike cases of fraud; both the petitioners earlier obtained ad-interim pre-arrest bail, but they failed to submit surety bonds and their petition stood dismissed on said ground, therefore, the previous conduct of the petitioners do not entitle them to claim any relief of extra ordinary nature; petitioners failed to establish any mala fide and ulterior motives on the part of complainant for their false implication, therefore, present petition is liable to be dismissed straightway.
5. Pro and contra arguments heard. Record was perused with the able assistance rendered by learned counsels for both the sides.
6. Main thrust of learned counsel for petitioners was on the point that offence under Section 406 of PPC was not made out and dispute between the parties was purely that of family nature. In order to better appreciate the above contention, I think it appropriate to throw a glance upon Section 405 of PPC, which is being reproduced below for the facility of reference:- '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 use or disposes of that property in violation of any direction of law 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"
In the light of supra mentioned reproduced penal provision, it appears to be clear that to attract the offence of criminal breach of trust punishable under section 406 PPC, the essential ingredients are:- i) There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted. ii) The person in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted. iii) He dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. iv) He dishonestly uses or disposes of that property in violation of any legal contract, express or implied, which he has made touching the discharge of such trust.
7. According to FIR Muhammad Taimoor complainant and his brother Kamran were got married with the petitioner Phaphi alias Fatima and Shahnaz Bibi and father of the complainant gave two golden rings to them and Rs.190,000/- for arrangement of marriage ceremony. The bare contents of the FIR do not suggest that entrustment of any property was made to the petitioners, which they misappropriated.
I feel no hesitation in observing that two golden rings and sum of Rs.190,000/- given by father of complainant to petitioners on the eve of their marriage with complainant and his brother could only be considered and treated as gift, as such dispute between the parties happened to be purely of family nature.
8. Learned counsel for complainant claimed with proud of strength that petitioners/accused failed to point out any malafide or ulterior motive on the part of the complainant as well as police, which are sine qua non for the grant of pre-arrest bail and these grounds were very much lacking in the present case.
Above said submissions of learned counsel for the complainant could not convince me, because malafide being a state of mind could not always be proved by direct evidence. In most of the cases it has always to be inferred from the facts and circumstances of the case. Reference in this regard can be had from 'Shahzada Qaiser Arfat alias Qaiser v. The State and another' (PLD 2021 SC 708). Meaning thereby weaker the case of prosecution, more shall be presumed therein element of malafide.
Weak and palpable circumstances of the case in hand are sufficient to lead this Court to draw an inference of malafide on the part of prosecution/complainant. If any reference in this regard is required, that can be had from 'Haji Ghani v. The State' (PLD 1988 Lahore 507) and 'Rear Adminral (Rtd.) M.I. Arshad v. The State' (1988 P.Cr.LJ 586 Karachi).
9. Both the petitioners are previous non-convicts. They are females, as such social norms of our society do not permit me to hand them over into the custody of police, lest the same should put their modesty at stake. Even otherwise, it was not likely to serve any purpose, as nothing has to be recovered at the instance or from the possession of petitioners. They would suffer irreparable loss, in case their arrest is made by police, as such I think it appropriate to exercise my discretion in favour of petitioners.
10. In the sequel to above discussion, the petitioners have succeeded in making out a good case for the grant of extra ordinary relief. Ad-interim pre-arrest bail already allowed to them stands confirmed subject to furnishing of surety bonds in the sum of Rs.200,000/- (two lac only) with one surety each in the like amount to the satisfaction of learned trial court.
11. Needless to mention that any observation made in the above order are tentative in nature and shall not influence the learned trial court in any manner.
Petition accepted. Bail confirmed.