Heard.
2. Muhammad Ashfaq petitioner has applied for his after arrest bail in the case bearing F.I.R. No.297 dated 21-9-2002, which stands registered against him alongwith his co-accused under sections 506, 406 and 420, P.P.C., with Police Station Mozang, Lahore.
3. The allegation against the petitioner was that when Maqsood Ahmad complainant desired to have his plots in Huma Block transferred in his name and commercialised, Bobi Butt co-accused being friend carried Maqsood in the office of Abdul Qayyum Qureshi, Advocate and told about the wish of Maqsood. Abdul Qayyum Qureshi, Advocate completed the papers including the power of attorney in his favour and when demanded the transfer fee, commercial fee and expenses including his own fee, Abdul Qayyum Qureshi, Ishfaq the present petitioner and his co-accused Ilyas and Bobi Butt received an amount of Rs.9,21,000, misappropriated and brought into their own use. He received an amount of Rs.75,000 and purchased one cow and one buffalo while Bobi Butt purchased a car bearing No.1900/S.T., out of the amount received by him and when there was the demand for return of this heavy amount, the petitioner and his co-accused caused threats to kill and also to abduct the children of the complainant. The details of the incident were provided in the application moved by Maqsood Ahmad, complainant to I.-G. Punjab, whereupon the above said case was registered.
4. Learned counsel for the petitioner mainly argued that the provisions of sections 406 and 506, P.P.C. Are not attracted in this case while the offence under section 420, P.P.C. Is bailable; that the petitioner remained on physical remand for many days but not a single penny was recovered from him; and that in fact the allegation against the petitioner is false. He added that when the provisions of sections 406 and 420, P.P.C. Are taken into consideration, it would reflect that both cannot be applied together as either it would be a case of criminal breach of trust or the matter of cheating. He further added that the petitioner is not involved in any other case of this nature, therefore, when the offences do not fall within the prohibitory clause of section 497, Cr.P.C. He is entitled for the grant of bail.
5. On the other hand, learned State Counsel assisted by the learned counsel for the complainant opposed this petition for bail and intimated that the bail regarding money matter against Mr. Abdul Qayyum Qureshi, Advocate is pending before the learned trial Court.
6. The point for examination is as to whether the provisions of sections 406 and 420, P.P.C. Can be applied together in a case, section 405, P.P.C. Deals with the criminal breach of trust and it is attracted in a case where a person entrusted with the property dishonestly misappropriates or converts to his own use that property, 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 which has come into existence in connection with the trust. It is obvious that there would be a breach of trust when owner of a property for his object hands over the property to any person and same is misappropriated by the trustee but it should be within the legal circle, e.g. a huge amount obtained out of business of the narcotics cannot be used as trust as any such transaction would be out of legal circle while a public servant can hand over his salary amount to his colleague as trust and in case of breach of this trust the provisions of section 405, P.P.C. Would certainly attract because the latter exercise reflects on a legal contract.
7. While in case of section 420, P.P.C. It attracts when a person dishonestly induces the person deceived to deliver any property to any person: Certainly this section reflects on the intention of the culprit who induces an innocent person to deliver the property by a fraudulent transaction.
The point for examination is as to whether both the provisions of law can be applied together in a case. Normally the idea behind section 405, P.P.C. Would differ with the concept given in section 420, P.P.C., therefore, both the sections may not be applied together but this entire situation would depend upon the facts and circumstances of each case as here in the instant case there was a legal desire on the part of the complainant and he was prepared to hand over the legal charges including the fee of the Advocate, when a person belonging to a respectable profession was brought before him by his wings and at the same moment the accused being greedy advanced an inducement to hand over the valuable property which intention was not in the knowledge of the victim, therefore, in such--like circumstances prima facie the provisions of sections 406 and 420, P.P.C. Would certainly attract, however, finally depending upon the evidence of the parties.
8. There are also allegations of causing threats to the victim for abducting his, children in case of demand of money against the petitioner and his co-accused, therefore, prima facie the provisions of sections as mentioned above, are attracted and being so, it is not a fit case for bail petition is hereby dismissed.