Section 406, PPC - Judgements
Citation Name : 2025 PCrLJ 120 Gilgit-Baltistan Chief Court.
Side Appellant : State
Side Opponent : Ahmed Hassan
S. 497(5)---Penal Code (XLV of 1860), Ss. 161, 406, 409, 417, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Cheating, forgery, taking illegal gratification by corrupt or illegal means and criminal misconduct---Pre-arrest bail, cancellation of---Misuse of bail---Accused was charged for committing corruption/embezzlement in the official budget of City Hospital---Record showed that the Trial Court had granted the extraordinary relief to the accused/ respondent in a very ordinary manner---Trial Court had not recorded a single sentence/finding on the points of prima facie case and involvement of the accused/respondent in the present case---Trial Court had also not given a single reason regarding the consequences of arrest of accused/respondent---Record transpired that after a formal inquiry the case had been registered---Accused/respondent was directly charged in the FIR and his role of being the Medical Superintendent of the said Hospital was specifically mentioned therein---Beside the above, the case was one of documentary evidence and verification of the same was required---Prima facie accused/respondent was facing a charge structured upon documentary evidence---Accused/respondent during the days of occurrence was the Medical Superintendent of said Hospital, therefore, question of false implication did not arise---Question of rule of consistency did not arise because the co-accused had joined the investigation and he was later on released by High Court on post arrest bail---Trial Court had blatantly disregarded the established principle for grant of pre-arrest bail and granted exceptional remedy in favour of the accused/respondent on irrelevant grounds and upholding such an illegal order, which was clear example of wrong exercise of jurisdiction, was tantamount to setting a bad judicial precedent---If such kind of decision was not overturned, same would encourage future abuse of jurisdiction---Pre-arrest bail granted in favour of accused was withdrawn, in circumstances.
Citation Name : 2024 MLD 1854 Gilgit-Baltistan Chief Court
Side Appellant : Ghulam Murtaza
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 409, 417, 420, 465, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Bail, grant of---Further inquiry---Rule of consistency---Record transpired that the present accused/petitioner, had been implicated in the offences which were prima facie not attracted against him---No denial of the fact that publication of the tender in the PEPRA website was the prime and principle liability/responsibility of the then District Health Officer according to the rules, being sole custodian of the concerned department, but it seemed that the same liability had been malafidely/ dishonestly shifted to junior staff member who was even not the concerned/ministerial staff, rather he was technical staff---This was against the law/rules and such dishonest act of the concerned authority created serious doubts and dents in the case of the prosecution---Admittedly and surprisingly one of the co-accused who had been allegedly attributed an identical role had been released by the police under S.169, Cr.P.C.---Moreover, the then District Health Officer had also been exonerated and given clean chit from the Investigation Officer of the present case, which also attracted the universal, "Rule of Consistency" in favor of the present accused/petitioner---Undoubtedly, offences under Ss. 417, 420, 465, 471, P.P.C, were bailable offences, whereas offence under S.409, P.P.C, fallen within the ambit of prohibitory clause of S.497, Cr.P.C, which prima facie was not attracted in the present case to the extent of the present accused/petitioner---Matter in hand required further probe into the guilt of the accused/petitioner---In such like cases grant of bail is a rule and refusal thereof is an exception---Accused/petitioner was behind the bars for the last couple of months, waiting for commencement of the trial of the case---Investigation of the case was complete and the present accused/petitioner was no more required for further investigation---Thus, the case of the accused/petitioner squarely fell within the ambit of S.497(2) Cr.P.C, entitling him for the concession of post arrest bail and the same was allowed, in circumstances.
Citation Name : 2024 MLD 502 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MOHAMMAD ALI FARHAN HAMEED
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Ad-interim pre-arrest bail, confirmation of---Allegation against the accused was that he usurped the amount of complainant while committing criminal breach of trust---Contents of FIR transpired that the alleged amount of Rs.1,78,80,000/- from 21.05.2020 to 3.12.2020 was given to the accused-petitioner, whereas, the crime report/FIR was got registered on 18.09.2021, after a delay of one year and fifteen days without explaining any sufficient reason, therefore, for the said reason, chances of petitioner's false implication with due deliberation after consultation could not be ruled out---From the facts and circumstances of the case, offence under S. 406, P.P.C was hardly attracted because there was no evidence on file that an amount of Rs.1,78,80,000/- was entrusted to the petitioner---As per narration of FIR, complainant handed over amount to the petitioner for the purchase of land for a property in her name but the petitioner neither purchased the land in the name of complainant nor returned her amount---Mere broken promise did not constitute the offence under S.406, P.P.C---Petitioner was appointed as Corporate Consultant, Training and Development in the company of complainant with monthly salary of Rs.900,000/- on 15.01.2018 and his service was confirmed on 18.06.2018---Allegedly, an amount of Rs.78,80,000/- was transferred in the account of petitioner through bank transaction as the same was paid as salary to the petitioner---Petitioner also annexed with present petition six salary slips through an application which manifested that Rs. 51,00,000/- was paid to the petitioner as salary---Complainant had not produced any proof of handing over the cash amount of Rs.10,000,000/- to the petitioner and investigation in that regard was also silent---Moreover, it was observed that matter between the parties was of family dispute because Nikah of complainant's brother was solemnized with daughter of the petitioner on 20.12.2020 and an amount of Rs. 51,00,000/- was fixed as Haq-ul-Mehr out of which, Rs. 50,00,000/- was deferred dower---Similarly in the column No.17 of NikahNama gold ornaments weighing 34 tolas valuing Rs.42,00,000/- were also given to the bride---As per FIR before the Nikah, from the amount of complainant's brother, a house was purchased and half portion of said house was transferred in the name of petitioner's daughter---Subsequently, dispute arose between the complainant's brother and petitioner's daughter and family suits were pending adjudication between them---Till the dispute between complainant's brother and petitioner's daughter, arose, the complainant had not tried to set the machinery of law into motion---Thus the complainant had apparently tingled a family dispute into criminal one which was not warranted by law---Petitioner was previous non-convict, he had already joined the investigation and according to the Investigating Officer, the investigation of the case was complete and reportedly there was no misuse of concession of pre-arrest bail, therefore, the petitioner had made out a case for confirmation of pre-arrest bail---Even otherwise, offence under S.406, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C., and no useful purpose would be served by sending him behind the bars mere at the wish of the complainant till his release on post-arrest bail after few days---Petition was allowed and the ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.
Citation Name : 2024 MLD 309 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SALEEM
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Civil dispute---Allegation levelled in the FIR was that the complainant entrusted machinery worth Rs. 14,000,000/- to the accused and his father, which they misappropriated---Accused purchased a stone crushing plant and entered into a partnership with the complainant to run it---Complainant operated it for 19 months and incurred huge losses---Accused persons then took over and operated it for four months but could not give better results---Accused persons leased it out to third party which left after four months---Once again the accused persons took the charge of the crusher and got it repaired and upgraded---Both the sides blamed each other for the losses---Complainant filed a suit for rendition of accounts against accused persons and during the proceedings the parties referred the matter to an arbitrator for arbitration, who later delivered his award and accused had filed an application in the Civil Court for making it rule of court---Element of entrustment contemplated by S. 405, P.P.C. was conspicuously missing in the instant case---There was essentially a dispute between the partners regarding handling of the business and its earnings---Hence, S. 405, P.P.C. was not attracted---Moreover, it was also debatable whether it could be invoked even against second accused because he was working as a proxy for his father/accused and not on his own account, who was abroad---Thus, it appeared that the complainant had lodged the FIR to mount pressure on the other side---Bail petition was accepted and ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.
Citation Name : 2024 YLR 185 ISLAMABAD
Side Appellant : Malik ZULFIQAR AHMED
Side Opponent : State
S.406---Criminal Procedure Code (V of 1898), Ss.561-A & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Contractual violation---Dispute of civil nature---Petitioner/accused sought quashing of FIR registered against him for non-performance of agreement to sell---Validity---Complainant stated in FIR that he had given money to petitioner/accused for purchase of land and not by way of entrustment---Matter in dispute was purely of civil nature---No limit could put a clog on exercise of inherent powers of High Court to make such orders as could be necessary to give effect in order to prevent abuse of process of any Court or otherwise to secure ends of justice---High Court quashed FIR registered against petitioner/accused---Constitutional petition was allowed, in circumstances.
Citation Name : 2024 MLD 1484 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Ghulam Nazik
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Ad-interim pre-arrest bail, confirmation of---Further inquiry---As per story of prosecution, 5/6 years prior to registration of the case FIR, the petitioners obtained three cows and one buffalo valued at Rs. 5,50,000/- on share basis but later on, they misappropriated the said animals and refused to give the respective share of the complainant---Contents of FIR transpired that the alleged occurrence took place about 5/6 years ago, whereas the crime report/FIR was registered after considerable delay without explaining any sufficient reason, therefore, chances of petitioners' false implication with due deliberation after consultation could not be ruled out---From the facts and circumstances of the case, offence under S.406 P.P.C was hardly attracted because there was no evidence on file that the animals were obtained by the petitioners from the complainant on trust rather the complainant himself admitted in the FIR that the same was given to the petitioners for the purpose of obtaining his share---In the narration of FIR, it had been mentioned that the animals were given to the petitioners on the sole ground that the petitioners would give/return respective shares to the complainant after due period, for which, the complainant, after due time, demanded his share, but the same was allegedly not given to him---Mere broken promises or business terms do not constitute the offence under S.406, P.P.C---Petitioners were previous non-convict, they had already joined the investigation and according to the Investigating Officer, the investigation of the case was complete and reportedly there was no misuse of concession of pre-arrest bail---Petitioners had made out a case for confirmation of pre-arrest bail---Offence under S.406, P.P.C, did not fall within the prohibitory clause of S.497 Cr.P.C---No useful purpose would be served by sending the petitioners behind the bars at the wish of complainant for an indefinite period---Petition was allowed and the ad-interim pre-arrest bail already granted to the petitioners was confirmed, in circumstances.
Citation Name : 2024 YLR 2582 Gilgit-Baltistan Chief Court
Side Appellant : Nadeem Farid
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 409, 417, 420, 465, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Embezzlement and corruption---Bail, grant of---Further inquiry---Rule of consistency---Record transpired that the accused/petitioner had been implicated in the offences which were prima facie not attracted against him---No denial of the fact that the Hospital concerned was primarily accountable for the said embezzlement and corruption according to the rules, being sole custodian of the concerned department, but it seemed that the liability had been malafidely/dishonestly shifted to junior staff, which was not even the concerned/ministerial staff---This was against the law/rules and such dishonest act of the concerned authority created serious doubts and dents in the case of the prosecution---Main co-accused Medical Superintendent of the Hospital and contractor, who were directly nominated in the promptly lodged FIR and allegedly specific role had been attributed to them by the complainant, had been enlarged on bail by the Trial Court, which also attracted the universal, "Rule of Consistency" in favor of the present accused/petitioner---Undoubtedly, all the alleged offences were bailable, except the offence under S.409, P.P.C, which fell within the ambit of prohibitory clause of S.497, Cr.P.C, which prima facie was not attracted in the present case to the extent of the present accused/petitioner---Furthermore, the complainant present in Court appeared before the Court on his own accord and stated at bar that he had neither alleged nor nominated the present accused/petitioner in the FIR for the commission of alleged offences and went on to say that had no complaint against the present accused/petitioner---Perusal of the record revealed that one of main accused/Cashier was still at large and the respondent/State had taken no action against him---No specific amount or figure of alleged embezzlement amount by the present accused/ petitioner had been mentioned in the FIR or anywhere in the record---First Information Report had been lodged with an inordinate and unexplained delay of almost four years, which created serious dents and doubts in the prosecution story---Whole case of prosecution was based on documentary evidence, which was already in the prosecution file---Present petitioner was no more required for further investigation purposes and there was no chance of tempering of record of the case---Concession of bail could not be withheld by way of punishments---Accused could not be kept behind the bars for an indefinite period, when co-accused had been granted bail---Connection of the accused with the commission of alleged offences was to be determined by the Trial Court after recording the evidence---Matter in hand required further probe into the guilt of the petitioner---In such like cases grant of bail is a rule and refusal thereof is an exception---Case of the accused/ petitioner squarely fell within the ambit of S.497(2), Cr.P.C, entitling him for the concession of post arrest bail and the same was allowed, in circumstances.
Citation Name : 2024 SCMR 1103 SUPREME-COURT
Side Appellant : Syed SAKHAWAT HUSSAIN
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), Ss. 34, 109, 406, 419, 420, 467, 468 & 471---Constitution of Pakistan, Art. 185(3)---Banking scam---Bail, grant of---Further inquiry---Accused was alleged to be one of the beneficiaries of a banking scam, who had received part of the misappropriated amount---Petitioner (accused) was not named in the list of 287 account holders who were nominated in the alleged unlawful transactions---Sole allegation against the petitioner was that his bank statements indicated receipt of a certain amount in his account as a beneficiary from an account holder of the bank---However, it was notable that the account holder in question from whom the amount was transferred to the petitioner was not implicated or nominated in the FIR---Furthermore, the alleged amount was not transferred to the petitioner's account at the bank where the scam occurred but was received allegedly in an account maintained by the petitioner at another bank, which was registered in the name of a business---Mere receipt of funds in a bank account could not be construed as proof of involvement in the scam at present stage as there was insufficient and incomplete material available on the record to establish any connection of the petitioner---Petitioner's criminal liability could only be determined after recording of evidence by the Trial Court---Mere nomination of the petitioner in the FIR without substantive material and without nominating the account holder by whom the amount was allegedly transferred in the bank account of the petitioner's company was insufficient to justify his further detention---Petitioner was behind the bars for more than nine months, and there was no likelihood of progress in the trial---Case of the petitioner was one of further inquiry---Petition was converted into an appeal and was allowed, and the petitioner was granted bail.
Citation Name : 2024 MLD 309 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SALEEM
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Civil dispute---Allegation levelled in the FIR was that the complainant entrusted machinery worth Rs. 14,000,000/- to the accused and his father, which they misappropriated---Accused purchased a stone crushing plant and entered into a partnership with the complainant to run it---Complainant operated it for 19 months and incurred huge losses---Accused persons then took over and operated it for four months but could not give better results---Accused persons leased it out to third party which left after four months---Once again the accused persons took the charge of the crusher and got it repaired and upgraded---Both the sides blamed each other for the losses---Complainant filed a suit for rendition of accounts against accused persons and during the proceedings the parties referred the matter to an arbitrator for arbitration, who later delivered his award and accused had filed an application in the Civil Court for making it rule of court---Element of entrustment contemplated by S. 405, P.P.C. was conspicuously missing in the instant case---There was essentially a dispute between the partners regarding handling of the business and its earnings---Hence, S. 405, P.P.C. was not attracted---Moreover, it was also debatable whether it could be invoked even against second accused because he was working as a proxy for his father/accused and not on his own account, who was abroad---Thus, it appeared that the complainant had lodged the FIR to mount pressure on the other side---Bail petition was accepted and ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.
Citation Name : 2023 MLD 351 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD HAMMAD KHAN
Side Opponent : State
Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 468, 420, 406 & 34---Forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, criminal breach of trust and common intention---Bail, grant of---Dispute of civil nature---Scope---Accused persons seeking pre-arrest bail had allegedly entered into an agreement with the complainant regarding transaction of some immovable property in consideration of certain amount through the accused seeking post-arrest bail---Although the allegation against the accused persons was of cheating and defrauding but the complainant's counsel had stated that the matter was about to patch up between the parties, however, he had raised some allegations against the accused, property dealer---Dispute between the parties was purely of civil nature, which was being given a colour of criminal proceedings---Property Dealer was not the beneficiary of the transaction, as such he had made out a case of bail in his favour---Accused persons were admitted to bail, in circumstances.
Citation Name : 2023 PCrLJ 149 ISLAMABAD
Side Appellant : MUHAMMAD MUSAWAR ABBASI
Side Opponent : State
S. 406---Specific Relief Act (I of 1877), S. 12---Criminal breach of trust---Agreement to sell, violation of---Scope---Breach of any term of agreement to sell does not fall foul of S. 406, P.P.C., as the agreement to sell is created under Contract Act, 1872, where one party signifies his willingness to do or not to do anything against a consideration and if the same is accepted by the other party it becomes a promise whereas the said promise if enforceable by law creates the term "contract"---Hence, it is manifestly clear that any agreement requires an offer/proposal, acceptance, promise, consideration and enforceability then the same creates the reciprocal obligations agreed between the parties---Agreement (between the parties) to perform the obligation whereas payment of money does not fall within the preview of "entrustment" of property in terms of S. 406, P.P.C., even otherwise, there is no misappropriation if the seller after receiving the sale consideration or part of sale consideration refuses to transfer the property or fails to abide the terms of agreement as the said failure or breach of terms cannot be equated with dishonest use, disposal of the property, violation of any legal contract, however, any breach of such agreement has a remedy under Specific Relief Act, 1877, where one can seek specific performance of a contract if the same is enforceable by law and the court of law has to see which party is responsible for refusal or failure to abide by the terms of the contract---Specific Relief Act, 1877 provides a mechanism which covers all those contracts between the parties which have been executed in terms of Contract Act, 1872 and their remedies are only provided in Specific Relief Act, 1877, where the ingredients of criminal breach of trust have no space as the concept of mens rea can only be assessed by the criminal court whereas the agreement does not fulfill the requirements of criminal breach of trust.
Citation Name : 2023 YLR 434 PESHAWAR-HIGH-COURT
Side Appellant : RAZA SHAH
Side Opponent : SUPERINTENDENT CENTRAL PRISON, PESHAWAR
Ss. 406, 420 & 489-F---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Criminal breach of trust, cheating, dishonestly issuing a cheque---Petitioner had challenged the order of the first appellate court vide which his appeal for conversion of consecutive sentences into concurrent, was dismissed---Validity---Admittedly, for all the offences in four FIRs, separate challan were submitted before the court---Though three out of four cases were pending in one and the same court however, the trials were undeniably separate---Accused had pleaded his guilt, in all the four cases, before the Trial Court after framing of charge---Earlier when charge was framed he denied the allegations against and claimed trial however, in three out of four cases when he admitted the commission of offence he was not served with a notice as required under S.243 of Cr.P.C. which was mandatory---Record showed that on the basis of admission, the Trial Court without serving him with show cause notice convicted and sentenced him in all the three cases on the same date and in each case, he was awarded three years simple imprisonment with fine, which was done when the accused/petitioner was produced in custody, solely on the basis of application, when he placed himself at the mercy of Court---Undisputedly, the petitioner had not challenged his conviction before the competent forum---Further, a sentence of three years' imprisonment had to commensurate within the offences---Petitioner had been convicted for the offence under S.489-F, P.P.C., for the period of three years in each, however, in case the sentences were not to run concurrently, the petitioner would have to serve a total of 12 years if he paid the fine in each case otherwise petitioner would remain there for further period of four months (SI), such as, further incarceration of the petitioner beyond three years with one month (SI) for failure of payment of fine---Keeping in view the circumstances of the case and the powers of High Court it was the judicial obligation of the Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process---Accordingly, it could safely be held that discretion to make the sentences to run consecutively or concurrently would be governed by different consideration, like facts of each case, nature and character of the offences, criminal history sheet and record of the offender, his age, sex---In penal or procedural provisions relating to criminal jurisprudence, liability or punishment would be capable of narrower construction, but the construction which would tilt the interpretation favourable to the accused would be preferred over the interpretation which would adversely affect the right of a person/accused under trial---Petition was disposed of in the term that all sentences awarded to the petitioner would be deemed to run concurrently.
Citation Name : 2023 CLD 352 KARACHI-HIGH-COURT-SINDH
Side Appellant : KHURSHEED ANWAR HABIB
Side Opponent : MUHAMMAD AMIN
S. 10-A---Criminal Procedure Code (V of 1898), Ss. 200 & 439---Penal Code (XLV of 1860), Ss. 406 & 420---Criminal breach of trust and cheating---Appreciation of evidence---Appeal against acquittal---Complainant Bank assailed judgment passed by Trial Court whereby accused was acquitted of the charge---Validity---Complaint and statement recorded under S. 200, Cr.P.C. were couched in general terms so as to broadly mention that accused "approached the Bank" but did not disclose details of what transpired on relevant date in terms of identifying who was responsible for custody of documents and/or instrumental in their release---When accused approached complainant Bank for release of documents, he could not have demonstrated such urgency as to prevail upon complainant Bank's functionaries to accede to release of documents without following necessary formalities by way of securing prior payment, as required under the Contract, or at least marking a lien over the account to be debited---Run of the mill customer of complainant Bank could scarcely have had such leverage as to prevail on its functionaries to make an accommodation of that nature, and neither the period of his banking relationship nor statement of account had suggested any special circumstances due to which accused would have been able to command such privilege---Presumption of double innocence had arisen in favour of acquitted accused and interference could be warranted only when decision to that effect was found to be capricious, arbitrary and perverse---High Court declined to interfere in judgment of acquittal passed by Trial Court---Revision was dismissed in circumstances.
Citation Name : 2023 YLR 1449 KARACHI-HIGH-COURT-SINDH
Side Appellant : NAVEED AHMED
Side Opponent : State
S. 498---Penal Code (XLV of 1860), Ss. 420, 406 & 34---Cheating and dishonestly inducing delivery of property, criminal breach of trust and common intention---Pre-arrest bail, refusal of---Failure to join investigation---Misuse of bail facility---Involvement of accused in cases of similar nature---Scope---Accused sought pre-arrest bail in an FIR lodged under Ss. 420, 406 & 34, P.P.C.---Admittedly, accused had not joined the investigation and misused the concession of pre-arrest bail as allegations of issuing threats were made by the complainant---Accused was a habitual offender of committing such type of offences and was involved in number of cases---Name of accused appeared in the FIR and he had not uttered a single word as to why he was falsely involved in the case---Prima facie, reasonable grounds were available for believing that the accused had committed the alleged offence---Ingredients for grant of pre-arrest bail were missing in the case---Petition for grant of pre-arrest bail was dismissed, in circumstances.
Citation Name : 2023 MLD 255 PESHAWAR-HIGH-COURT
Side Appellant : ANYI SUNDY alias JOE
Side Opponent : State
S. 497--- Penal Code (XLV of 1860), 406, 409, 419, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal breach of trust, cheating, forgery, criminal misconduct and money laundering---Bail, grant of---Statutory delay, principle of---Pre-condition---Accused was behind the bars for last 15 months and delay in conclusion of trial was not attributed to him---Validity---Statutory right to be released on bail flowed from the Constitutional right to liberty and fair trial under Arts. 9 & 10-A of the Constitution---Act or omission on the part of accused to delay timely conclusion of trial must be result of a visible concerted effort orchestrated by accused---Purpose and objective of law was to ensure that trial of an accused was conducted expeditiously and pre-conviction detention of accused did not extend beyond the period of one year in cases involving offences not punishable by death---If trial of accused was not concluded within one year of his detention, statutory right to be released on bail ripened in his favour---Bail was granted, in circumstances.
Citation Name : 2023 MLD 342 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. MASSARRAT ABID
Side Opponent : State
Ss. 406, 417, 420, 427, 107, 206 & 34---Criminal breach of trust, cheating, cheating and dishonestly inducing delivery of property, mischief by causing loss or damage to the amount of one thousand rupees or upward, abetment, fraudulent removal or concealment of property to prevent its seizure, common intention---Appreciation of evidence---Appeal against acquittal---Perusal of the impugned judgment revealed that after examining the entire evidence adduced by the witnesses as well as the documentary evidence, it became crystal clear that no element of fraud inducement and false representation on the part of the respondents/accused took place, which fell under S. 420, P.P.C., as the element of cheating was not manifested from the evidences of the appellant/complainant and witness---Evidence showed that neither accused executed any agreement with the appellant/ complainant nor they received the amount as beneficiary, hence no transaction took place by the respondents---Admittedly the amount as alleged had been given to the absconder accused under written agreement which was on record, hence no criminal breach of trust against the respondents/accused had been proven by the appellant/complainant---No cogent evidence was available which connected the respondents/accused with the commission of offences---Impugned judgment was speaking one and elaborated which did not suffer from any illegality, gross irregularity and infirmity---Appeal against acquittal was dismissed accordingly.
Citation Name : 2023 PCrLJ 276 ISLAMABAD
Side Appellant : MUHAMMAD IBRAR KHAN
Side Opponent : Mian MUHAMMAD RAMZAN
S. 406--- Criminal Procedure Code (V of 1898), Ss. 249-A & 417(2)---Criminal breach of trust---Appeal against acquittal---Reliance on FIR only---Effect---Complainant was aggrieved of order passed by Trial Court under S. 249-A, Cr.P.C., acquitting accused of the charge---Validity---While dealing with application under S. 249-A, Cr.P.C., it was mandatory for Trial Court to take into consideration material collected during the course of investigation which was lacking---Exclusive reliance upon contents of FIR in exclusion of other prosecution evidence was unjust, erroneous and arbitrary---Reasons made basis to acquit accused even at initial stage by invoking provision of S. 249-A, Cr.P.C. was to base on reasons---Such reasons were to flow from analysis of prosecution evidence besides the law on the subject--- Respondent was accused of offence 'criminal breach of trust'---Co-accused was at large who had also been declared a Proclaimed Offender---Prosecution, in order to substantiate the allegations, relied upon statements of about ten witnesses besides stamp paper taken in possession during the course of investigation and also got the same verified by the concerned stamp paper, whose testimony in terms of statement under S. 161, Cr.P.C. was also relied upon---High Court set aside order of acquittal and remanded matter to Trial Court for decision afresh on application under S. 249-A, Cr.P.C.---Appeal was allowed accordingly.
Citation Name : 2023 MLD 351 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD HAMMAD KHAN
Side Opponent : State
Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 468, 420, 406 & 34---Forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, criminal breach of trust and common intention---Bail, grant of---Dispute of civil nature---Scope---Accused persons seeking pre-arrest bail had allegedly entered into an agreement with the complainant regarding transaction of some immovable property in consideration of certain amount through the accused seeking post-arrest bail---Although the allegation against the accused persons was of cheating and defrauding but the complainant's counsel had stated that the matter was about to patch up between the parties, however, he had raised some allegations against the accused, property dealer---Dispute between the parties was purely of civil nature, which was being given a colour of criminal proceedings---Property Dealer was not the beneficiary of the transaction, as such he had made out a case of bail in his favour---Accused persons were admitted to bail, in circumstances.
Citation Name : 2023 YLR 2660 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed ADNAN ZAFAR
Side Opponent : State
S. 498---Penal Code (XLV of 1860), Ss. 420, 468, 406 & 34---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, criminal breach of trust, and common intention---Pre-arrest bail, confirmation of---First Information Report had been lodged with the unexplained delay of one year and no iota of evidence was available against the petitioner---Present case hinged upon the agreement, original of which was not available with the prosecution---Petitioner had denied signing / execution of agreement-in-question with the complainant, thus said fact (execution) required further enquiry which would be proved after recording evidence during the trial---No complaint of misuse of concession of bail or tampering the record had been pointed out, while petitioner was regularly appearing before High Court as well as Trial Court---Petitioner had, admittedly, not violated any condition on the basis of which his bail could be cancelled---Ad interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.
Citation Name : 2023 YLR 1130 KARACHI-HIGH-COURT-SINDH
Side Appellant : KHURSHEED ANWAR HABIB
Side Opponent : MUHAMMAD AMIN
Ss.406 & 420---Criminal Procedure Code (V of 1898), Ss. 200 & 439---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.10-A---Criminal breach of trust and cheating---Appreciation of evidence--- Appeal against acquittal---Complainant Bank assailed judgment passed by Trial Court whereby accused was acquitted of the charge--- Validity--- Complaint and statement recorded under S. 200, Cr.P.C. were couched in general terms so as to broadly mention that accused "approached the Bank" but did not disclose details of what transpired on relevant date in terms of identifying who was responsible for custody of documents and/or instrumental in their release---When accused approached complainant Bank for release of documents, he could not have demonstrated such urgency as to prevail upon complainant Bank's functionaries to accede to release of documents without following necessary formalities by way of securing prior payment, as required under the Contract, or at least marking a lien over the account to be debited---Run of the mill customer of complainant Bank could scarcely have had such leverage as to prevail on its functionaries to make an accommodation of that nature, and neither the period of his banking relationship nor statement of account had suggested any special circumstances due to which accused would have been able to command such privilege---Presumption of double innocence had arisen in favour of acquitted accused and interference could be warranted only when decision to that effect was found to be capricious, arbitrary and perverse---High Court declined to interfere in judgment of acquittal passed by Trial Court---Revision was dismissed in circumstances.
Citation Name : 2022 SCMR 2001 SUPREME-COURT
Side Appellant : MUHAMMAD ALI
Side Opponent : SAMINA QASIM TARAR
Ss. 405 & 406---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Criminal breach of trust---First Information Report (FIR) quashed by High Court in its Constitutional jurisdiction---Legality---In the present case, the alternative remedy of filing petition (under Cr.P.C) was not availed rather accused persons/ respondents directly filed a Constitution petition (before the High Court) calling in question the very registration of FIR---Contents of the crime report were totally ignored by the High Court and were not taken into consideration while adjudicating the matter---Bare perusal of the FIR and the agreement to sell prima facie revealed that a clear allegation of entrustment and misappropriation of the property was made by the petitioner/vendee against the respondents/vendors in the FIR, which prima-facie disclosed an offence under section 405, P.P.C. punishable under section 406, P.P.C.---Admittedly, despite lapse of statutory period, the challan had not been submitted before the Trial Court, which ex-facie meant that investigation had not been completed---In such circumstances, the possibility could not be ruled out that further material may be collected for proceeding with trial---Question regarding determination as to whether there was an entrustment of property, as asserted by the petitioner, could best be left to Trial Court to consider and decide in exercise of its power after recording of evidence--- Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside with the direction to the prosecution branch to submit challan of the case before the Trial Court without un-necessary delay.
Citation Name : 2022 SCMR 2040 SUPREME-COURT
Side Appellant : Malik MUHAMMAD TAHIR
Side Opponent : State
S. 497--- Penal Code (XLV of 1860), Ss. 420, 468, 471, 406 & 489-F---Constitution of Pakistan, Art. 185(3)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust, dishonestly issuing a cheque---Fraud with an Overseas Pakistani---Bail, refusal of---Allegation against the accused was that he entered into an agreement to sell his immovable agricultural land with the complainant---Complainant not only paid an amount of Rs.4.40 million to him but as per the agreed terms, he got transferred two residential plots in the name of the persons suggested by the accused---However, the accused did not mutate the land in favour of the complainant on account of deficiency in title and issued him a cheque amounting to Rs.2.60 million towards transfer fee but the same could not be encashed and got dishonoured---During investigation, it was found that the accused did not have any land, which could be transferred in the name of the complainant, and that he sold the two residential plots of the complainant to some persons and received the sale consideration---Evidence also reflected that the amount of Rs.4.40 million was received by the accused in his bank account---Although the offences under sections 406, 468 & 489-F, P.P.C. did not fall within the prohibitory clause of section 497, Cr.P.C. but this principle was not absolute, rather it depended upon the facts and circumstances of each case---Admittedly the complainant was an overseas Pakistani national, who had been deprived of his wealth, hence, it cast a heavy duty upon the courts to provide him safeguard within the limits of law---Sufficient material oral and documentary was available on the record to establish that the case of the accused did not fall within the purview of section 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was dismissed, and accused was refused bail.
Citation Name : 2022 YLRN 113 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD AKRAM FAHEEM
Side Opponent : State
S. 497(5)---Penal Code (XLV of 1860), Ss. 406, 420, 468, 471, 506, 34---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, criminal breach of trust, common intention--- Bail, grant of---Further inquiry---Facts narrated and documents produced in court, prima facie, did not reveal that any document had been forged by the accused---Trial Court, only after leading evidence, would be in a position to determine said issue conclusively---Prima facie, court was not satisfied that an offence attracting a criminal liability had been committed---Delay of nearly three years on the part of the complainant to lodge FIR needed to be explained at trial, as no reason for the delay had been provided---Admittedly, complainant, who claimed to have been cheated of an amount of Rs. 134 million by the accused, had yet taken no step to file a suit for recovery, which, prima facie, did not reflect well on the complainant's bona fide and indicated that an attempt had been made to invoke criminal proceedings as an arm twisting mechanism---Offences with which the accused was charged fell within the non-prohibitory clause of S. 497, Cr.P.C.---Investigation was complete, no purpose would be served in detaining the accused behind the bars---Accused was admitted to bail, in circumstances.
Citation Name : 2022 SCMR 1223 SUPREME-COURT
Side Appellant : ALI RAZA
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), S. 406---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust---Bail, grant of---Further inquiry---Pre-requisites for attracting section 406, P.P.C. absent---Complainant had given his vehicle to the co-accused, who operated a car showroom and rent a car business---Co-accused alleged that the vehicle in question was given to the accused, who misappropriated the same and never returned it----Only material against the accused was the statement of the co-accused which was per se not admissible in evidence---To attract the provisions of section 406, P.P.C., it was necessary to fulfil basic requirements of 'entrustment' and 'misappropriation with 'mens rea'---Both said ingredients of section 406, P.P.C. were totally absent in the present case---Hence, there was no independent evidence or material against the accused which would directly involve him in the offence under section 406, P.P.C.---Further, no recovery had been made from him and the question of his guilt or innocence was a matter which required further inquiry at trial stage---Offence alleged also did not fall within the prohibitory clause of section 497, Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed, and accused was admitted to bail.
Citation Name : 2022 PCrLJN 13 ISLAMABAD
Side Appellant : MUHAMMAD ARIF
Side Opponent : TASNEEM FATIMA
Ss. 420, 468, 406, 489-F & 109---Passports Act (XX of 1974), S. 6---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, criminal breach of trust, dishonestly issuing a cheque, abetment---Appreciation of evidence---Appeal against acquittal---Offence relating to passport---Scope---Prosecution case was that the accused fraudulently received huge amount from the complainant along with passports of 44 persons for sending them to perform Hajj, but she did not fulfil her obligation---Later on, accused issued different cheques to the complainant for repayment of the amount received by her, but the same were dishonoured when presented for encashment---Record showed that the FIR did not contain the allegation that any passport was received by the accused/respondent from the complainant on the pretext of arranging Hajj Quota---FIR simply stated that on the persuasion of the accused/respondent, the complainant paid her an amount of Rs.63,47,244---Some of the amount was transferred to her through bank and remaining paid in cash---Complainant had deposed that 44 passports were given to the accused/respondent, however, during the cross-examination, the complainant admitted that in his complaint submitted before the FIA, he had not requested for recovery or return of passports from the accused/respondent---Complainant also admitted that there was no need of passport for issuance or allotment of Hajj Quota---Admittedly, Hajj Quota was issued only to the authorized persons and companies---Complainant also admitted that in the permit issued by the Government pertaining to Hajj Quota only number of persons was mentioned---Said admission of the complainant coupled with non-recovery of passports, it stood established that no passport was handed over to the accused/respondent for the purposes of issuance of Hajj Quota---Complainant's admission further proved that Passports were not needed for issuance or allotment of Hajj Quota---Record was further reflective of the fact that none of the passport holders lodged any complaint against the accused/respondent that she was holding their passport unauthorizedly---Section 6 of the Passports Act, 1974 provided penalties for offences pertaining to passport---Delivery of passports by the complainant or receipt of the same by the accused/respondent had not been proved on record, therefore, the Trial Court was right in acquitting the accused from the offence under S. 6 of the Passports Act, 1974---Circumstances established that the appeal had no force, which was dismissed accordingly.
Citation Name : 2022 PCrLJN 13 ISLAMABAD
Side Appellant : MUHAMMAD ARIF
Side Opponent : TASNEEM FATIMA
Ss. 420, 468, 406, 489-F & 109---Passports Act (XX of 1974), S. 6---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, criminal breach of trust, dishonestly issuing a cheque, abetment, offence relating to passport---Appreciation of evidence---Appeal against acquittal---Forged document was prepared for the purpose of cheating---Scope---Prosecution case was that the accused fraudulently received huge amount from the complainant along with passports of 44 persons for sending them to perform Hajj, but accused did not fulfil her obligation---Accused issued different cheques to the complainant for repayment of the amount received by her, but the same were dishonoured when presented for encashment---Nothing on record to suggest that any forgery was committed by the accused/respondent or any forged document was prepared by her for the purposes of cheating---Evidence of the complainant showed that the accused managed a letter consisting of two pages, from a Member National Assembly (MNA), but even the said document could not prove effective and even on MNA quota, no Hajj visa was issued---Preparation of forged document and non-effectiveness of a document were two different issues---Record transpired that it was not the case of the complainant that the letter issued by MNA was fake, because no evidence to that effect was collected by the Investigation Officer---Statement of MNA was also not recorded during the investigation---No certificate was issued by MNA thereby disowning the letter allegedly issued by him---No Authority declared the said letter to be fake one---Mere fact that the said letter could not serve the purpose of the complainant qua issuance of Hajj Quota or visas did not prove that the said letter was fake---Trial Court was thus absolutely right in holding that offence under S. 468, P.P.C., was not proved---Circumstances established that the appeal had no force, which was dismissed accordingly.
Citation Name : 2022 PCrLJN 60 KARACHI-HIGH-COURT-SINDH
Side Appellant : SHOUKAT ALI
Side Opponent : MUHAMMAD ISMAIL
Ss. 406, 420, 468, 471 & 506---Criminal Procedure Code (V of 1898), Ss. 417 & 249-A---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document and criminal intimidation---Appreciation of evidence---Appeal against acquittal---Complainant lodged FIR against the accused by stating that the complainant loaded the vehicle of the accused with fifty thousand liter furnace oil amounting to Rs. 37,94,931/- and the same was sent for other city through driver and cleaner and also had given amount of Rs. 1,40,300/- as travel expenses to the son of the accused---Driver with the connivance of his employer prepared forged invoices and committed criminal breach of trust---Trial Court while exercising the power under S. 249-A, Cr.P.C., acquitted the accused by holding that the prosecution had no material to connect the accused persons for the charge---Validity---Record showed that alleged incident was taken place on 6.9.2014 whereas FIR of the incident was lodged by complainant on 24.6.2017, after the delay of about two and half years for which no satisfactory explanation had been furnished---First Information Report had been lodged by the complainant with due deliberation and consultation---Record transpired that complainant entrusted his property, if any, to driver and cleaner, therefore, necessary ingredients of S. 406, P.P.C., which provide that the property which was misappropriated must be entrusted to the alleged person or same must be in his dominancy, which were missing in the case as neither vehicle nor furnace oil was entrusted to the respondents---Ingredients of S. 420, P.P.C. were cheating, inducing dishonestly deception by delivering the property---No ingredients of S. 420, P.P.C. were noticed in facts and circumstances of the present case---Accused had also lodged FIR against present complainant under S. 332, P.P.C., much prior to present FIR, taking said aspect of the case into consideration, it appeared that the present FIR was a counter-blast of the FIR of accused---Civil litigation was also going on in between the parties---Section 249-A, Cr.P.C. was an enabling provision giving power to the Magistrate of criminal jurisdiction after hearing the prosecution and accused to give finding that charge was groundless or that no probability of the accused being convicted of any offence existed---If the court was reasonably convinced that a criminal charge could not sustain, going on trial was not necessary, said powers could be exercised even before framing of charge---Trial Court had elaborately discussed all the points involved in the case, therefore, the same need not to be interfered---Appeal was dismissed having no merit.
Citation Name : 2022 PCrLJN 13 ISLAMABAD
Side Appellant : MUHAMMAD ARIF
Side Opponent : TASNEEM FATIMA
Ss. 420, 468, 406, 489-F & 109---Passports Act (XX of 1974), S. 6---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, criminal breach of trust, dishonestly issuing a cheque, abetment, offence relating to passport---Appreciation of evidence---Appeal against acquittal---Jurisdiction of Federal Investigating Agency (FIA)---Scope---Prosecution case was that the accused fraudulently received huge amount from the complainant along with passports of 44 persons for sending them to perform Hajj, but she did not fulfil her obligation---Accused issued different cheques to the complainant for repayment of the amount received by her, but the same were dishonoured when presented for encashment---Accused was a private person---Neither, accused was employee of the Federal Government Organization nor had any concern directly or indirectly with any of the Federal Government Departments, therefore, she could not be held liable to be tried or investigated by the FIA---Complainant though had claimed that the accused met them in the office of Ministry of Religious Affairs but no proof in that behalf was placed on record---Investigating Officer admitted in cross-examination that he had not inquired from the concerned Ministry as to the employment of the accused over there---Jurisdiction of FIA was restricted only to the Federal Government employees as provided in S. 21 of the P.P.C.---Nothing on record to suggest that the accused had made any transaction in the capacity of Government servant or the complaint's issue was in any way concerned with the affairs of the Federal Government, instead that was a private arrangement between the parties---Jurisdiction of FIA was not made out---In view of such legal position, the Trial Court was right in acquitting the accused from the offence under S. 489-F, P.P.C., as FIA had no authority to register the case against a private person---Stance was taken by the complainant as well as by witness that the accused posed herself to be an employee/Private Secretary to the Secretary, Ministry of Religious Affairs, but that was not put to her in her statement recorded under S. 342, Cr.P.C.---Circumstances established that the appeal had no force, thus was dismissed accordingly.
Citation Name : 2022 MLD 444 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. AYESHA ANWAR
Side Opponent : State
S.498---Penal Code (XLV of 1860), Ss.406, 380, 448---Criminal breach of trust, theft in a dwelling house and house trespass---Pre-arrest bail, confirmation of---Civil litigation---On a dispute of Rs.2,000,000/-between the parties, complainant got a case registered against accused---Validity---Civil litigation was pending adjudication between parties---Accused filed a suit against complainant and as a counterblast complainant had lodged FIR in order to convert civil liability into criminal---Such exercise to harass, blackmail, humiliate and pressurize accused to complete nefarious designs of complainant was not permitted under law--- Culpability of accused in offences under Ss.380 & 448, P.P.C. could be determined by Trial Court after recording and evaluating of evidence---Object of pre-arrest bail was to save innocent persons from humiliating, harassment and incarceration on the basis of false implication---Pre-arrest bail was confirmed, in circumstances.
Citation Name : 2022 SCMR 2001 SUPREME-COURT
Side Appellant : MUHAMMAD ALI
Side Opponent : SAMINA QASIM TARAR
Ss. 405 & 406--- Criminal breach of trust--- Expressions 'entrustment' and 'trust' used in section 405, P.P.C.---Scope---Expression "entrustment" with the property or with any domain over the property has been used in a broader sense under section 405, P.P.C.; it has wide and different implications in different context---While expression "trust" in section 405, P.P.C. is a comprehensive expression and has been used to denote various types of relationship, like relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.
Citation Name : 2022 SCMR 1223 SUPREME-COURT
Side Appellant : ALI RAZA
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), S. 406---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust---Bail, grant of---Further inquiry---Pre-requisites for attracting section 406, P.P.C. absent---Complainant had given his vehicle to the co-accused, who operated a car showroom and rent a car business---Co-accused alleged that the vehicle in question was given to the accused, who misappropriated the same and never returned it----Only material against the accused was the statement of the co-accused which was per se not admissible in evidence---To attract the provisions of section 406, P.P.C., it was necessary to fulfil basic requirements of 'entrustment' and 'misappropriation with 'mens rea'---Both said ingredients of section 406, P.P.C. were totally absent in the present case---Hence, there was no independent evidence or material against the accused which would directly involve him in the offence under section 406, P.P.C.---Further, no recovery had been made from him and the question of his guilt or innocence was a matter which required further inquiry at trial stage---Offence alleged also did not fall within the prohibitory clause of section 497, Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed, and accused was admitted to bail.
Citation Name : 2022 YLRN 133 KARACHI-HIGH-COURT-SINDH
Side Appellant : SUHAIL JIWANI
Side Opponent : State
Ss. 420, 406, 506 & 34---Criminal Procedure Code (V of 1898), S. 249-A---Dishonestly inducing delivery of property, criminal breach of trust, criminal intimidation and common intention---Power of Magistrate to acquit accused at any stage---Acquittal after framing of charge---Scope---Appellant assailed order passed by Magistrate whereby the accused persons were acquitted of the charge on an application under S.249-A, Cr.P.C.---Validity---Charge against the accused persons had already been framed which showed that in the wisdom of Trial Court there was some substantial material against the accused persons but subsequently without recording any evidence in the matter Trial Court acquitted the accused persons without any valid reason---Magistrate, while passing the acquittal order, had relied upon the re-investigation report---Police could carry out re-investigation and submit its report but findings of such investigation were just an opinion of the police and the court had to decide the case after recording of evidence---High Court observed that the presiding officer of the Trial Court had acted erroneously in the matter with mis-conception and mis-interpretation and had disposed of the matter purely on non-appreciation and non-application of the required norms of law and justice---Appeal was allowed, impugned judgment was set aside and the case was remanded to the Trial Court for decision on merits.
Citation Name : 2022 PCrLJN 60 KARACHI-HIGH-COURT-SINDH
Side Appellant : SHOUKAT ALI
Side Opponent : MUHAMMAD ISMAIL
Ss. 406, 420, 468, 471 & 506---Criminal Procedure Code (V of 1898), Ss. 417 & 249-A---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document and criminal intimidation---Appreciation of evidence---Appeal against acquittal---Complainant lodged FIR against the accused by stating that the complainant loaded the vehicle of the accused with fifty thousand liter furnace oil amounting to Rs. 37,94,931/- and the same was sent for other city through driver and cleaner and also had given amount of Rs. 1,40,300/- as travel expenses to the son of the accused---Driver with the connivance of his employer prepared forged invoices and committed criminal breach of trust---Trial Court while exercising the power under S. 249-A, Cr.P.C., acquitted the accused by holding that the prosecution had no material to connect the accused persons for the charge---Validity---Record showed that alleged incident was taken place on 6.9.2014 whereas FIR of the incident was lodged by complainant on 24.6.2017, after the delay of about two and half years for which no satisfactory explanation had been furnished---First Information Report had been lodged by the complainant with due deliberation and consultation---Record transpired that complainant entrusted his property, if any, to driver and cleaner, therefore, necessary ingredients of S. 406, P.P.C., which provide that the property which was misappropriated must be entrusted to the alleged person or same must be in his dominancy, which were missing in the case as neither vehicle nor furnace oil was entrusted to the respondents---Ingredients of S. 420, P.P.C. were cheating, inducing dishonestly deception by delivering the property---No ingredients of S. 420, P.P.C. were noticed in facts and circumstances of the present case---Accused had also lodged FIR against present complainant under S. 332, P.P.C., much prior to present FIR, taking said aspect of the case into consideration, it appeared that the present FIR was a counter-blast of the FIR of accused---Civil litigation was also going on in between the parties---Section 249-A, Cr.P.C. was an enabling provision giving power to the Magistrate of criminal jurisdiction after hearing the prosecution and accused to give finding that charge was groundless or that no probability of the accused being convicted of any offence existed---If the court was reasonably convinced that a criminal charge could not sustain, going on trial was not necessary, said powers could be exercised even before framing of charge---Trial Court had elaborately discussed all the points involved in the case, therefore, the same need not to be interfered---Appeal was dismissed having no merit.
Citation Name : 2022 YLR 1368 ISLAMABAD
Side Appellant : MUHAMMAD NOMAN KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Bail, grant of---Involvement in other cases---Effect---Accused was arrested for his failure to return car of complainant which he took for two days---Complainant contended that accused was involved in other criminal cases also---Validity---High Court observed that mere involvement in other cases could not disentitle accused from relief of bail, if accused otherwise had succeeded in bringing his case within the meaning of further inquiry---Liberty of a person is a precious right that has been guaranteed by the Constitution---Where there is slight tilt towards grant of bail, same needs to be preferred over letting one to confine in jail for an indefinite period in the name of trial when conclusion thereof can completely impose due punishment for such released person---Investigation was completed and accused was previously non-convict, who was no more required by police for the purpose of further investigation---Accused had been behind the bars for five months without any progress in trial---Fair and speedy trial was one of the fundamental rights of accused and no moral or legal compulsion existed to keep him behind the bars for an indefinite period which would amount to punishment without trial---Case of accused was one of further inquiry---Bail was allowed, in circumstances.
Citation Name : 2022 YLR 1424 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHOAIB ALI
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, grant of---Civil dispute---Scope---Accused sought pre-arrest bail in an FIR registered under S.406, P.P.C.---Allegation levelled in the FIR was that the complainant had paid certain amount to the accused and his co-accused persons as trust for the purpose of purchasing plots but the same was not returned---Held; the amount was paid as advance for purchasing plots and when the plots were not given to the complainant then the FIR was got registered, therefore, prima facie this was a civil transaction and not the case of "criminal breach of trust" defined under S. 405, P.P.C. and punishable under S. 406, P.P.C.---Complainant after joining hands with the police had tried to convert a civil transaction into a criminal one through registration of the case, which fact itself reflected mala fide intention on the part of the prosecution---Reasonable grounds were not available on record to connect the accused with the commission of alleged offence---Insistence of Investigating Officer for arrest of the accused in the case showed mala fide intention on the part of the prosecution---Pre-arrest bail was allowed, in circumstances.
Citation Name : 2021 PCrLJN 56 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL BARI KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), Ss. 406, 407 & 34---Criminal breach of trust, breach of trust by carrier, common intention---Bail, grant of---Accused was charged that he along with his co-accused embezzled the batteries which were sent through their truck---Accused had not been named in the FIR---No specific role had been assigned to accused---No direct allegations had been levelled against the present accused---Prosecution had failed to find anything against the present accused---All of a sudden one day name of accused appeared on a supplementary challan showing him to be standing close to the batteries and upon inquiry he disclosed that the batteries belong to his brothers who sent those from place "Q"---Recovered incriminating material and its evidentiary value would be examined by the Trial Court---Accused-applicant had been in continuous custody since his arrest and was no more required for purpose of investigation nor the prosecution had claimed any exceptional circumstances which could justify the keeping of the accused behind the bars for an indefinite period---Prosecution had not claimed that the accused was previously involved in the cases of same nature---Nothing on record that accused was previous convict---Accused, in circumstances, had succeeded in bringing his case within the purview of S. 497(2) Cr.P.C.---Accused was admitted to post arrest bail, in circumstances.
Citation Name : 2021 PCrLJN 88 KARACHI-HIGH-COURT-SINDH
Side Appellant : SHAHID HUSSAIN
Side Opponent : State
Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 489-F, 420, 406 & 506---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property, criminal breach of trust, criminal intimidation---Bail, grant of---Delayed FIR---Delaying in recording statements of witnesses---Completion of investigation---Further inquiry---Scope---Accused was alleged to have dishonestly issued a cheque which was dishonoured on its presentation---FIR was lodged with the delay of 15 days---Statements of prosecution witnesses were recorded with a delay of further two days---Offence with which the accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Investigation of the case was complete and the accused was no more required for the purpose of investigation---Case against accused required further inquiry into his guilt and his case fell within the ambit of subsection (2) of S. 497, Cr.P.C. which entitled him to the concession of bail---Petition for grant of bail was allowed, in circumstances.
Citation Name : 2021 PCrLJ 669 ISLAMABAD
Side Appellant : ANWAAR-UL-HAQ
Side Opponent : The JUDICIAL MAGISTRATE, P.S. RAMNA, ISLAMABAD
Ss. 489-F, 406 & 34---Dishonestly issuing a cheque, criminal breach of trust and common intention---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Accused obtained five vehicles on rent from complainant but did not pay rent, thereafter accused issued a cheque amounting to Rs. 26,00,000/- in favour of complainant which was dishonoured due to insufficient funds, however accused neither paid rent nor returned two vehicles---Perusal of the record revealed that the complainant in his statement deposed that the accused had misappropriated his vehicle and attributed the allegation with regard to misappropriation of parts of other vehicle to the co-accused---During the physical remand neither the vehicle nor any parts of vehicle were recovered from possession of the accused---Record further revealed that the complainant deposed that after one year and eight months the police informed him that his vehicle had been recovered and he had taken the same on superdari from the concerned Area Magistrate---Nothing was on record to show as to from where the police got recovered the said vehicle and no recovery memo regarding recovery of the said vehicle was available on record, which made the prosecution case highly doubtful---Record further transpired that vehicle was obtained by accused whereas, co-accused was only a guarantor, as such, the obligation for the payment of rent of the said vehicle was upon accused and not on the co-accused---Prosecution also failed to establish any specific amount of rent due towards the accused---Principal ingredient of the offence being dishonest misappropriation or conversion might not ordinarily be a matter of direct proof---Entrustment of property and failure in the breach of an obligation to account for the property entrusted, if proved, might in the light of other circumstances, justifiably led to an inference of dishonest misappropriation or conversion---Ingredients of the offence under S. 406, P.P.C., in circumstances, was not made out against the accused---Allegedly an Iqrarnama was executed between accused and complainant but complainant neither mentioned the said document in his application for registration of the FIR nor produced before the Investigation Officer---No marginal witnesses of the said Iqrarnama was produced by the prosecution to prove its contents---Prosecution failed to prove the liability of accused with regard to payment of Rs. 26,00,000/- to the complainant mentioned in the cheque---Record transpired that no material was available on record against the accused---Trial Court, after proper appraisal of evidence available on record, had concluded that the prosecution had failed to prove its case against all the accused, as such, acquitted them---Appeal against acquittal was dismissed, in circumstances.
Citation Name : 2021 YLR 370 ISLAMABAD
Side Appellant : MUHAMMAD SHAFIQ
Side Opponent : MUHAMMAD IJAZ ABBASI
S. 406---Criminal breach of trust---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about four months in lodging the FIR---Effect---Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the same was not transferred in his favour---Record showed that there was an inordinate and unexplained delay of about four months in the lodging of the FIR, which made the prosecution case doubtful---Appeal against acquittal was dismissed accordingly.
Citation Name : 2021 MLD 278 ISLAMABAD
Side Appellant : SAMINA QASIM TARAR
Side Opponent : State
Ss.405 & 406---Criminal breach of trust---Ingredients---Section 405, P.P.C. shows that it deals with the breach of trust with fraudulent and dishonest intent for wrongful gain---Criminal breach of trust is committed by a person (i) when there is dishonest entrustment of property to any person or with dominion over the property (ii) dishonest misappropriation or conversion of the property in his own use by the person who has been entrusted with the property (iii) who dishonestly use or dispose of the property in violation of any direction of the law prescribing the mode in which the trust is to be discharged (iv) dishonest use or disposal of the property in violation of any legal contract express or implied, which he has made touching the discharge of such trust and (v) willfully suffer other person to do so by the person to whom the property has been entrusted.
Citation Name : 2021 PCrLJ 1549 PESHAWAR-HIGH-COURT
Side Appellant : SHAH ZAIN
Side Opponent : JAMEEL-UR-REHMAN
S. 498---Penal Code (XLV of 1860), Ss. 489-F & 406---Dishonestly issuing a cheque, criminal breach of trust---Pre-arrest bail, grant of---Scope---Accused persons sought pre-arrest bail in an FIR registered against them under Ss. 489-F & 406, P.P.C.---Allegation of complainant was that he had a mobile phone business with the accused persons; that they after getting the mobile phones worth Rs.83,65,000/- disappeared; that subsequently, they handed over two cheques to the complainant which were issued by the subsequent purchaser of the mobile phones and that the cheques, on presentation, were bounced being blocked by the drawer---Held; complainant had alleged a huge business transaction with the accused persons, however, the record was silent in that respect, as nothing was available on record which could support the contention of the complainant---Subsequent purchaser of mobile phones who had issued the cheques had already been released on post-arrest bail---Involvement of accused persons in the circumstances was not free from mala fide and ulterior motives---Applicability of S. 406, P.P.C. would be seen by the Trial Court at the time of trial---Accused persons had no criminal history of involvement in such like offences---Investigation was complete and the accused persons were not required for further investigation---Petition for grant of pre-arrest bail was allowed, in circumstances.
Citation Name : 2021 PCrLJ 669 ISLAMABAD
Side Appellant : ANWAAR-UL-HAQ
Side Opponent : The JUDICIAL MAGISTRATE, P.S. RAMNA, ISLAMABAD
Ss. 489-F, 406 & 34---Dishonestly issuing a cheque, criminal breach of trust and common intention---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Accused obtained five vehicles on rent from complainant but did not pay rent, thereafter accused issued a cheque amounting to Rs. 26,00,000/- in favour of complainant which was dishonoured due to insufficient funds, however accused neither paid rent nor returned two vehicles---Perusal of the record revealed that the complainant in his statement deposed that the accused had misappropriated his vehicle and attributed the allegation with regard to misappropriation of parts of other vehicle to the co-accused---During the physical remand neither the vehicle nor any parts of vehicle were recovered from possession of the accused---Record further revealed that the complainant deposed that after one year and eight months the police informed him that his vehicle had been recovered and he had taken the same on superdari from the concerned Area Magistrate---Nothing was on record to show as to from where the police got recovered the said vehicle and no recovery memo regarding recovery of the said vehicle was available on record, which made the prosecution case highly doubtful---Record further transpired that vehicle was obtained by accused whereas, co-accused was only a guarantor, as such, the obligation for the payment of rent of the said vehicle was upon accused and not on the co-accused---Prosecution also failed to establish any specific amount of rent due towards the accused---Principal ingredient of the offence being dishonest misappropriation or conversion might not ordinarily be a matter of direct proof---Entrustment of property and failure in the breach of an obligation to account for the property entrusted, if proved, might in the light of other circumstances, justifiably led to an inference of dishonest misappropriation or conversion---Ingredients of the offence under S. 406, P.P.C., in circumstances, was not made out against the accused---Allegedly an Iqrarnama was executed between accused and complainant but complainant neither mentioned the said document in his application for registration of the FIR nor produced before the Investigation Officer---No marginal witnesses of the said Iqrarnama was produced by the prosecution to prove its contents---Prosecution failed to prove the liability of accused with regard to payment of Rs. 26,00,000/- to the complainant mentioned in the cheque---Record transpired that no material was available on record against the accused---Trial Court, after proper appraisal of evidence available on record, had concluded that the prosecution had failed to prove its case against all the accused, as such, acquitted them---Appeal against acquittal was dismissed, in circumstances.
Citation Name : 2021 YLR 370 ISLAMABAD
Side Appellant : MUHAMMAD SHAFIQ
Side Opponent : MUHAMMAD IJAZ ABBASI
S. 406---Criminal breach of trust---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the plot was not transferred in his favour---Complainant deposed that he met the accused in the office of an advocate, where the accused induced him to purchase his plot---Complainant entered into agreement to sell with the accused regarding plot, which was to be allotted to the accused for sale consideration amount of Rs.20,00,000/- and paid Rs.11,00,000/- as earnest money to the accused in presence of the witnesses---Complainant admitted that he had also filed a suit for specific performance of contract before the civil court---Complainant also admitted that he did not produce said advocate before the Investigation Officer in support of his version---Prosecution witness deposed that agreement to sell was executed between the complainant and the accused in his presence---Said witness further deposed that complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and he was also the marginal witness of the said agreement to sell---Investigating Officer admitted that he had not interrogated the advocate because he did not join the investigation---Perusal of the record revealed that as a result of the agreement to sell, the complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and it was not proved that it was an entrustment---With regard to the said agreement to sell the complainant had also filed a suit for specific performance before the civil court---Breach of any term of agreement to sell, in circumstances, did not fall within the criteria of criminal breach of trust as the agreement to sell had been created under the Contract Act, 1872, where one party signified his willingness to do anything against a consideration---Payment of earnest money did not fall within the preview of "entrustment" of property in terms of S.406, P.P.C.---Even otherwise, there was no misappropriation if the seller after receiving the sale consideration or part of sale consideration, refused to transfer the plot or failed to abide by the terms of agreement, as the said failure or breach of terms could not be equated with dishonest use, disposal of the property or violation of any legal contract---Any breach of such agreement had a remedy under Specific Relief Act, 1877, where one could seek a specific performance of a contract, if the same was enforceable by law---Court of law had to see which party was responsible for refusal or failure of performance of the terms of the contract---Trial Court did not acquit the accused on the sole ground of non-production of prosecution evidence but also on the ground that there seemed no breach of trust as alleged by complainant---Record showed that the matter seemingly did not fall within the concept of breach of trust as defined in S.405 of the P.P.C.---First Information Report being the result of alleged breach of terms of the agreement, the complainant had tried to settle the civil dispute through initiation of criminal proceedings, which abuse could not be allowed to perpetuate---In the present case, the complainant had already approached the civil court by filing a civil suit for recovery and compensation against accused---Agreement to sell when provided the remedy for breach of any term in the contract as of damages, all other remedies could be seen under the said clause---Criminal prosecution in the case was just an abuse of process, which was apparent on record---Circumstances established that ingredients of the offence under S.406, P.P.C. was not made out against the accused---Appeal, against acquittal was dismissed accordingly.
Citation Name : 2021 YLR 370 ISLAMABAD
Side Appellant : MUHAMMAD SHAFIQ
Side Opponent : MUHAMMAD IJAZ ABBASI
S. 406---Criminal breach of trust---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the plot was not transferred in his favour---Complainant deposed that he met the accused in the office of an advocate, where the accused induced him to purchase his plot---Complainant entered into agreement to sell with the accused regarding plot, which was to be allotted to the accused for sale consideration amount of Rs.20,00,000/- and paid Rs.11,00,000/- as earnest money to the accused in presence of the witnesses---Complainant admitted that he had also filed a suit for specific performance of contract before the civil court---Complainant also admitted that he did not produce said advocate before the Investigation Officer in support of his version---Prosecution witness deposed that agreement to sell was executed between the complainant and the accused in his presence---Said witness further deposed that complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and he was also the marginal witness of the said agreement to sell---Investigating Officer admitted that he had not interrogated the advocate because he did not join the investigation---Perusal of the record revealed that as a result of the agreement to sell, the complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and it was not proved that it was an entrustment---With regard to the said agreement to sell the complainant had also filed a suit for specific performance before the civil court---Breach of any term of agreement to sell, in circumstances, did not fall within the criteria of criminal breach of trust as the agreement to sell had been created under the Contract Act, 1872, where one party signified his willingness to do anything against a consideration---Payment of earnest money did not fall within the preview of "entrustment" of property in terms of S.406, P.P.C.---Even otherwise, there was no misappropriation if the seller after receiving the sale consideration or part of sale consideration, refused to transfer the plot or failed to abide by the terms of agreement, as the said failure or breach of terms could not be equated with dishonest use, disposal of the property or violation of any legal contract---Any breach of such agreement had a remedy under Specific Relief Act, 1877, where one could seek a specific performance of a contract, if the same was enforceable by law---Court of law had to see which party was responsible for refusal or failure of performance of the terms of the contract---Trial Court did not acquit the accused on the sole ground of non-production of prosecution evidence but also on the ground that there seemed no breach of trust as alleged by complainant---Record showed that the matter seemingly did not fall within the concept of breach of trust as defined in S.405 of the P.P.C.---First Information Report being the result of alleged breach of terms of the agreement, the complainant had tried to settle the civil dispute through initiation of criminal proceedings, which abuse could not be allowed to perpetuate---In the present case, the complainant had already approached the civil court by filing a civil suit for recovery and compensation against accused---Agreement to sell when provided the remedy for breach of any term in the contract as of damages, all other remedies could be seen under the said clause---Criminal prosecution in the case was just an abuse of process, which was apparent on record---Circumstances established that ingredients of the offence under S.406, P.P.C. was not made out against the accused---Appeal, against acquittal was dismissed accordingly.
Citation Name : 2021 MLD 278 ISLAMABAD
Side Appellant : SAMINA QASIM TARAR
Side Opponent : State
Ss. 405 & 406---Criminal breach of trust---Ingredients---Section 405, P.P.C. shows that it deals with the breach of trust with fraudulent and dishonest intent for wrongful gain---Criminal breach of trust is committed by a person (i) when there is dishonest entrustment of property to any person or with dominion over the property (ii) dishonest misappropriation or conversion of the property in his own use by the person who has been entrusted with the property (iii) who dishonestly use or dispose of the property in violation of any direction of the law prescribing the mode in which the trust is to be discharged (iv) dishonest use or disposal of the property in violation of any legal contract express or implied, which he has made touching the discharge of such trust and (v) willfully suffer other person to do so by the person to whom the property has been entrusted.
Citation Name : 2021 PCrLJN 61 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TALAT HAFEEZ
Side Opponent : JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, DERA GHAZI KHAN
Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss. 405, 406 & 489-F---Ex-officio Justice of Peace, powers of---Criminal breach of trust---Dishonestly issuing a cheque---Scope---Respondent filed application under Ss. 22-A & 22-B, Cr.P.C. before Ex-officio Justice of Peace alleging therein that the petitioner dishonestly misappropriated two cheques drawn by him, which application was allowed---Police report, called for by Ex-officio Justice of Peace, depicted that the petitioner had already got lodged FIR in respect of a cheque drawn by respondent, which on presentation before the concerned Bank was dishonoured---Respondent had not produced any cogent evidence in support of his allegation---Ex-officio Justice of Peace had passed a mechanical order without applying his mind by not even considering the police report---Respondent had not approached the court with clean hands and had withheld a material fact that he was arrested in the FIR got lodged by the petitioner---High Court allowed the constitutional petition and set aside the order passed by Ex-officio Justice of Peace.
Citation Name : 2021 PCrLJ 40 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD TARIQ AJMAL
Side Opponent : State
S. 497---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Passports Act (XX of 1974), S. 6---Penal Code (XLV of 1860), S. 406---Travel Agencies Act (XXX of 1976), Ss. 6 & 14---Unlawful emigration, receiving money for providing foreign employment, trafficking in passports or documents required for obtaining a passport, criminal breach of trust, prohibition to act as a travel agency without licence---Bail, grant of--- Completion of investigation---Further inquiry---Scope---Allegation against the accused was that he was found running an illegal travel agency and when the raid was conducted, he could not produce any valid licence to the raiding party and led to the recovery of nine Pakistani passports along with other documents---Accused was not found to be in possession of a forged document---Accused had produced a certification of incorporation of a private limited company, issued by Additional Joint Registrar of the Companies---Accused was holding 52500 shares of the said company---Said aspect of the case was not investigated by the Investigating Officer---No action was taken against the accused under Travel Agencies Act, 1976---Section 14 of Travel Agencies Act, 1976 provided that no court could take cognizance of an offence punishable under the Act except upon a complaint made in writing by or under the authority of the Federal Government---Federal Government had authorised the Controller, Department of Tourist Services, to make complaints in courts in respect of the offences under the said Act committed by the travel agencies---Applicability of S. 6, Passports Act, 1974 required determination by the Trial Court, after appraising evidence---Nothing incriminating was recovered from the accused by Investigating Officer---No other case of similar nature was registered against the accused---Insertion of the word "or" in Ss. 17 & 22 of Emigration Ordinance, 1979, S. 6 of Passports Act, 1974 and S. 406, P.P.C. by the Legislature, meant that the sentence of imprisonment was not mandatory and it had been left at the discretion of the court of law to either sentence the accused with imprisonment or with fine or both---Discretion while sentencing the accused could only be exercised by the Trial Court after recording of evidence---Law provided the possibility that if the accused was convicted after recording of evidence he could be sentenced to payment of fine only---Accused was not required by the Investigation Agency for further investigation---No proof was available with the prosecution that the accused would either abscond or tamper with the prosecution evidence---Case of the accused required further inquiry and probe which could only be undertaken by the Trial Court---Accused was admitted to post-arrest bail, in circumstances.
Citation Name : 2021 CLD 422 LAHORE-HIGH-COURT-LAHORE
Side Appellant : M. JAVED SHAFI
Side Opponent : STATION HOUSE OFFICER, POLICE STATION SHORKOT CITY
Ss. 7 & 20---Penal Code (XLV of 1860), S. 406---Constitutional petition---Quashing of FIR---Criminal breach of trust---Jurisdiction of Banking Court---Scope---Petitioners sought quashing of FIR registered against them under S. 406, P.P.C.---Sugar bags were allegedly removed by petitioners lying in the godown of sugar mills of which they were directors---Said sugar bags were in the control of the Bank as the same were pledged against loan taken by petitioner's mills---Complainant's company was deputed by Bank for security of sugar bags through an agreement---Registration of FIR by police was unwarranted and uncalled for as the alleged offence could only be tried by the Banking Court constituted under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---Action could only be taken by an Investigating Agency nominated by Federal Government on a complaint in writing moved by authorised officer of a financial institution--- Local police had no authority to register a criminal case in the matters between a Bank and its customers---Constitutional petition was allowed, in circumstances.
Citation Name : 2021 YLR 328 ISLAMABAD
Side Appellant : MUHAMMAD NAWAZ
Side Opponent : State
S. 497---Penal Code (XLV of 1860), Ss. 406, 468, 471 & 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 14 & 16---Criminal breach of trust, forgery for purpose of cheating, using as genuine a forged document, abetment---Electronic fraud---Unauthorized use of identity information---Bail, grant of---Scope---Accused was alleged to have advertised a vehicle on an online marketplace which was purchased by complainant, however subsequently, its invoice was found to be fabricated and forged---None of the offences with which the accused was charged fell within prohibitory clause of S.497, Cr.P.C.---Investigating Officer had yet to determine whether the invoice was forged by the accused or the one from whom he had purchased the vehicle---Accused was not required for further investigation and case against him was one of further inquiry---Petition for grant of bail was allowed, in circumstances.
Citation Name : 2021 PCrLJN 56 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL BARI KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), Ss. 406, 407 & 34---Criminal breach of trust, breach of trust by carrier, common intention---Bail, grant of---Accused was charged that he along with his co-accused embezzled the batteries which were sent through their truck---Accused had not been named in the FIR---No specific role had been assigned to accused---No direct allegations had been levelled against the present accused---Prosecution had failed to find anything against the present accused---All of a sudden one day name of accused appeared on a supplementary challan showing him to be standing close to the batteries and upon inquiry he disclosed that the batteries belong to his brothers who sent those from place "Q"---Recovered incriminating material and its evidentiary value would be examined by the Trial Court---Accused-applicant had been in continuous custody since his arrest and was no more required for purpose of investigation nor the prosecution had claimed any exceptional circumstances which could justify the keeping of the accused behind the bars for an indefinite period---Prosecution had not claimed that the accused was previously involved in the cases of same nature---Nothing on record that accused was previous convict---Accused, in circumstances, had succeeded in bringing his case within the purview of S. 497(2) Cr.P.C.---Accused was admitted to post arrest bail, in circumstances.
Citation Name : 2021 PCrLJN 56 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL BARI KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), Ss. 406, 407 & 34---Criminal breach of trust, breach of trust by carrier, common intention---Bail, grant of---Accused was charged that he along with his co-accused embezzled the batteries which were sent through their truck---Accused had not been named in the FIR---No specific role had been assigned to accused---No direct allegations had been levelled against the present accused---Prosecution had failed to find anything against the present accused---All of a sudden one day name of accused appeared on a supplementary challan showing him to be standing close to the batteries and upon inquiry he disclosed that the batteries belong to his brothers who sent those from place "Q"---Recovered incriminating material and its evidentiary value would be examined by the Trial Court---Accused-applicant had been in continuous custody since his arrest and was no more required for purpose of investigation nor the prosecution had claimed any exceptional circumstances which could justify the keeping of the accused behind the bars for an indefinite period---Prosecution had not claimed that the accused was previously involved in the cases of same nature---Nothing on record that accused was previous convict---Accused, in circumstances, had succeeded in bringing his case within the purview of S. 497(2) Cr.P.C.---Accused was admitted to post arrest bail, in circumstances.
Citation Name : 2020 MLD 1176 KARACHI-HIGH-COURT-SINDH
Side Appellant : TARA CHAND
Side Opponent : IMTIAZ ALI
Ss. 406, 420, 468, 506/2 & 34---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, criminal intimidation, common intention---Appreciation of evidence---Appeal against acquittal---Appellant nowhere in his evidence had stated a single word nor produced any valid receipt about the date and time of obtaining loan by accused and handing over documents of vehicles as mortgage to him---Appellant was unable to disclose names of real owners of vehicles whose documents were retained by him and handed over huge amount to accused persons---Evidence about the verification of files of vehicles was doubtful and was not confronted to accused persons during their statement under S.342, Cr.P.C.---All the witnesses were employees of the appellant, hence, were interested and their evidence was not free from doubts---Burden of proving the case was upon the prosecution---Single circumstantial doubt in the case of prosecution would go in favour of accused not as a matter of grace but as a matter of right---Approach to deal with the appeal against conviction was distinguishable from appeal against acquittal, because presumption of double innocence was attached in the latter case --- Impugned judgment did not suffer from any illegality so as to call for interference---Appeal against acquittal was dismissed, in circumstances.
Citation Name : 2020 PCrLJ 1661 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMTAZ HUSSAIN
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 406---"Criminal breach of trust"---Pre-arrest bail, grant of---Delayed FIR---Business relations---Scope---Complainant alleged that accused persons received an amount of Rs.7,00,000/- as trust for business purpose and thereafter misappropriated the said amount---First Information Report was recorded after a delay of more than two years without explaining any sufficient reasons---Parties had business relations---Volunteer entrustment of property was sine qua non to constitute an offence under S. 406, P.P.C.---Mere breach of promise, agreement or contract in absence of clear entrustment ipso facto did not attract the definition of "criminal breach of trust"---Prima facie, prosecution had no sufficient incriminating material to connect the accused persons with the commission of alleged offence and chances of their implication with mala fide intention could not be ruled out---Accused persons had joined the investigation---Offence under S. 406, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for grant of pre-arrest bail was accepted, in circumstances.
Citation Name : 2020 SCMR 670 SUPREME-COURT
Side Appellant : HASSAN JAVED
Side Opponent : State
Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Anticipatory bail, grant of---Further inquiry---Allegation against accused-employee was that he received payments from his employer's customers in his personal accounts; that he transacted payments from company's account of his employer for consignments personally settled with foreign customers, and that he confessed his guilt and paid back part of the alleged sum with an undertaking for the remainder---Held, that the prosecution and complainant had not been able to point out, any material/evidence to establish alleged transactions, each of which was admittedly documented---No statement was available on the record to confirm the alleged confession by the accused, either individually or jointly with other employees---In addition to the crime report, the only statement was that of a prosecution witness, who referred to some "voice messaging" by the accused as proof of his guilt without production thereof before the Investigating Officer, foreclosing the possibility of its forensic confirmation---Not even the time or date of impugned transactions was mentioned in the crime report---Loss, allegedly incurred due to the employees, could not be equated with breach of trust--- Argument that mala fide was lurking behind the intended arrest could not be dismissed and as such given the accused's clean past, his remission into custody would be a measure far from being conscionable--- Case of accused came within the remit of S. 497(2), Cr.P.C.---Accused was admitted to anticipatory bail.
Citation Name : 2020 PLD 931 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IFTIKHAR AHMED
Side Opponent : State
Ss. 63 & 161---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Discharge of accused on first day of arrest---Complainant was aggrieved of discharge of accused by Magistrate on first day of his arrest on the ground that offence under S.406, P.P.C. was not made out---Validity---Submission of report by police was necessary for such discretion to pass order under S.63, Cr.P.C. to discharge accused justly and fairly---Accused was discharged by Magistrate on the first day of arrest despite the fact that statements of complainant and witnesses recorded under section 161 Cr.P.C. were available on record---Magistrate had not already granted physical remand of accused and police could not collect incriminating evidence against them---High Court set aside such mechanical order of discharge and remanded the matter to Magistrate for decision afresh on remand application filed by police---Constitutional petition was allowed in circumstances.
Citation Name : 2020 PCrLJ 1661 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMTAZ HUSSAIN
Side Opponent : State
S. 406---Criminal breach of trust---Scope---Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.
Citation Name : 2020 PCrLJ 1661 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMTAZ HUSSAIN
Side Opponent : State
S. 406---Criminal breach of trust---Scope---Mere breach of a promise, agreement or contract, in absence of clear entrustment, does not ipso facto attract the definition of criminal breach of trust.
Citation Name : 2020 PCrLJ 931 ISLAMABAD
Side Appellant : HASSAN ALI RAJA
Side Opponent : State
Ss. 498, 435/439---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Further inquiry---Proclaimed offender---Record showed that earlier, accused was granted pre-arrest bail but he became absent and was declared proclaimed offender and later on, his bail was also got cancelled by the complainant---Alleged transaction, i.e. sale-purchase, did not, ipso facto, constitute "entrustment" and departure thereof a "criminal breach of trust"---Offence did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C., even within the category of heinous crimes---Case appeared to be one of further inquiry and by holding so, he was allowed pre-arrest bail earlier, that too was a factor which, prima facie, supported the version of the accused regarding his false involvement and the fact that a civil nature lis had been attempted to be converted into criminal to settle the score---Allegation of jumping the concession of bail without repetition and keeping himself away from the process of law, in comparison with the facts, brought the pendulum down to the accused---Objection that in presence of order of cancellation of bail by the Court earlier, accused could not ask for to avail extraordinary concession of pre-arrest bail appeared to be somewhat harsh because not only the referred order was passed at his back but at the relevant time he was not a proclaimed offender, rather he was subsequently declared as such---Section 406, P.P.C., did not fall within the ambit of prohibitory clause and in the offences which were not included in the ambit of prohibitory clause, grant of bail was a rule and refusal an exception---First Information Report and the other material available on record showed that offence could be in the nature of S. 403, P.P.C., or S. 420, P.P.C., which were bailable and in such like case bail was granted as matter of right---When any accused succeeded to prove his case in the purview of further inquiry then he was entitled for bail as a matter of right and in that eventuality even remaining proclaimed offender of said accused, did not disentitle him from the bail because when there was a context between further inquiry and the proclaimed offender for the purpose of grant of bail then element of proclaimed offender would give way to the fact of further inquiry, bail being matter of right---Bail could not be withheld merely on the ground that the accused remained a fugitive from law because that was only a matter of propriety.
Citation Name : 2020 PCrLJ 335 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASIM
Side Opponent : State
S. 406---Criminal breach of trust---Scope---Voluntary entrustment of property is sine qua non to constitute an offence under S. 406, P.P.C.
Citation Name : 2020 MLD 964 KARACHI-HIGH-COURT-SINDH
Side Appellant : BASHIR AHMED BADAL
Side Opponent : State
S. 345---Penal Code (XLV of 1860), Ss. 406 & 420---Compounding of offence---Criminal breach of trust, cheating and dishonestly inducing delivery of property---Scope---Accused who was convicted under Ss. 406 & 420, P.P.C., filed compromise application---Contention of accused was that offence under S. 406, P.P.C. was not made out from the facts of the case---Validity---Allegation against accused was that he and co-accused cheated the complainant on the assurance of arranging visa for umrah, which allegation fell within the meaning of cheating, punishable under S.420, P.P.C.---Punishment under S. 406, P.P.C. was not tenable and the same was set-aside by the High Court---Parties had affirmed the contents of compromise application and had further affirmed that the same was voluntary---High Court accepted the compromise application and acquitted the accused---Criminal revision application was disposed of accordingly.
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