' Mst. Uzma Muhammad lqbal Qureshi, the petitioner through the instant petition has sought for pre-arrest bail in case F.I.R. No.278 dated 8-9-2003 under section 406, P.P.C. Registered with Police Station, Garden Town, Lahore.
2. Briefly the prosecution case as per F.I.R. Is that she and her husband Muhammad lqbal Qureshi deceitfully had persuaded the complainant Muhammad Shakeel Butt to invest amount in the business of Messrs Leader Forex Company, who on their persuasion invested an amount of Rs.6,00,000 in the business of the said Company but due to crash of International market his all the said amount has sunk. In this way, they had defrauded him.
3. It has been contended on her behalf that she has falsely been roped in on account of mala fide of the complainant as well the police as she was mere Trading agent of the said company and had not received the aforementioned amount directly from him or in any in her personal capacity; that there is delay of about 1-1/2 years in lodging the F.I.R., which also speaks of his (complainant) mala fide; that it is his (complainant) own case that he had invested his said amount in the business of the Company , which collapsed due to crash of the international exchange market and hence there is no question of any criminal breach of trust or misappropriation of his amount on her part; that it is admitted position on record that he (complainant) had deposited that amount with the management of the company and not with her and so in such circumstances the question of application under section 406, P.P.C. Against her seriously needs consideration; that the Directors and other office-bearers of the said company have been taken into custody by the N.A.B. And the recovery of sunken amount of the investors indulging him (complainant) and others is likely to be effected; that the dispute between the parties, if any is of civil nature and hence she is not criminally liable in the matter; that she is a woman and so the first provision to section 497(1), Cr.P.C. Is attracted to her case and this fact alone is sufficient to entitle her to the relief prayed for; that she has joined the investigation and is also ready to do so even in future; that no question of recovery of amount from her is involved in the matter; and that her husband had remained in jail and was allowed bail by the learned lower Court.
4. Conversely, the learned counsel for the State assisted by the counsel for the complainant has opposed the petition on the ground that she and her husband have defrauded the complainant by getting invested his heavy amount of Rs.6,00,000 in the business of the said Forex Company and in lieu thereof they had got back their own invested amount with the company and in this way she and her husband are criminally liable for the act complained of; and that in the facts and circumstances of the case the offence under section 406, P.P.C. Is attracted against her.
5. However, the learned State counsel of his own has stated that the Directors and other office- bearers of such companies have been taken into custody by the NAB and the recovery of the sunken amount of their share holders is likely to be effected from them and in case, it so happens, the amount of the complainant may be returned to him. He has also conceded that the petitioner has joined the investigation with the police and no question of any recovery from her is involved in the matter.
6. I have carefully considered the submissions made from both the sides with the help of available record.
7. It is evident from the bare reading of the F.I.R. That if at all the petitioner had invested his amount in the business of the said Forex Company, it was with intention have gain from the same. Even if, there was any persuasion to him in this matter by the petitioner and her husband, it may not be with any criminal intent. It is her case that she was Trading agent of the company and the same has not been denied by his side. She admittedly in no other capacity was associated with the company. It is also an admitted position on record that the amount invested by the petitioner went into the hands of the management of the company and not to her or her husband at any point of time.
8. It may also be mentioned here that there is with the petition, the copy of order dated 8-9-2003 recorded by learned Additional Sessions Judge, Lahore on the application under sections 22-A and 22-B, Cr.P.C. Of her husband Muhammad Iqbal Qureshi. He has observed in the same as follows:-- "Comments have been obtained which show that the petitioner and his wife Uzma Iqbal got a sum of Rs.10,000 American Dollars from Muhammad Shakeel Butt respondent No.3 in order to invest in business. From the comments, it appears that the matter between the parties is of civil nature so respondent No.3 should avail adequate remedy from the Civil Court."
9. The above observation really seems correct as by reading of the F.I.R., it appears unambiguously that dispute between the parties, if any is regarding the return of money of the complainant. The same essentially is of civil nature.
10. The F.I.R. Also seems to have been lodged with delay of about 1-1/2 years.
11. Hence, in view of all such facts, it is yet to be seen that if she can be criminally held liable for the above referred act or that offence under section 406, P.P.C. Is attracted against her. From that angle, her case is covered under subsection (2) of section 497, Cr.P.C. Requiring further inquiry into her guilt.
12. It may not be out of place to mention here that the learned State counsel has informed this Court that the NAB have taken into custody the Directors and office-bearers of such companies and all out efforts are being made to recover the invested amount of the share-holders from them.
He has also conceded that she has joined the investigation and is not wanted for any further purpose of the same as the question of no recovery from her is involved in the matter.
13. In these circumstances, I find that the learned Additional Sessions Judge, Lahore has erred in refusing her said relief vide his order dated 20-9-2003.
14. I, therefore, accept this petition and confirm the ad interim pre-arrest bail already granted to her by this Court vide order dated 26-9-2003 subject to her furnishing fresh bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surety each in the like amount to the satisfaction of the learned Ilaqa/Duty Magistrate.
15. She, however, shall join the investigation again, if and when so required B to do by the police.
Pre-arrest .