PLJ 2022 Cr.C. 1484
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 406--Criminal breach of trust--Essential ingredients--Ingredients of criminal breach of trust, breach of any term of agreement to sell does not fall within above mentioned criteria as agreement to sell has been created under Contract Act, 1872 where one party signifies his willingness to do or not to do anything against a consideration and if same has been accepted by other party it becomes a promise whereas said promise if enforceable by law creates term "contract"--Any agreement requires an offer/proposal, acceptance, promise, consideration and enforceability then same creates reciprocal obligations agreed between parties--It is agreed to perform obligation whereas payment of money does not fall within preview of "entrustment" of property in terms of section 406, P.P.C., even otherwise, there is no misappropriation if seller after receiving sale consideration or part of sale consideration refused to transfer property or failed to abide terms of agreement as said failure or breach of terms could not be equated with dishonest use, disposal of 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 same is enforceable by law and Court of law has to see which party is responsible for refusal or failure to abide by terms of contract--As a result of said evaluation by Court of law either defendant has been directed to perform contract or pay damages under said law.
[P. 1487] A
Criminal breach of trust--
----Requirements--Specific Relief Act, 1872--The above referred scheme of law under Specific Relief Act, 1877 provides a mechanism which covers all those contracts between parties which have been executed in terms of Contract Act, 1872 and their remedies are only provided in Specific Relief Act, 1877 where ingredients of criminal breach of trust have no space as concept of mens rea could only be assessed by criminal Court whereas agreement does not fulfill requirement of criminal breach of trust. [P. 1487] B
2017 PCr.LJ 133.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of pre-arrest bail of respondent--Allegation of--Dishonoured of cheque--Ordinarily superior Courts are reluctant to interfere into order extending concession of bail; rather they have shown reluctance to intervene in such like matters--The rationale behind is that once concession of bail is granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with concession extended to an accused who is otherwise clothed with free life, as a consequence of concession and if any view is taken by Court it would be synonymous to curtailing liberty of said accused prior to completion of trial, which otherwise is a precious right guaranteed under Constitution of country. [P. 1489] C
2021 SCMR 87.
Mr. Waqar Hanif Abbasi, Advocate for Petitioner.
Date of hearing: 20.6.2022.
PLJ 2022 Cr.C. 1484
[Islamabad High Court, Islamabad]
Present: Tariq Mehmood Jahangiri, J.
MUHAMMAD MUSAWAR ABBASI--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 787-BC of 2022, decided on 20.6.2022.
Order
Through the instant petition, the petitioner seeks cancellation of pre-arrest bail granted to Respondent No. 2 vide order dated 16.05.2022, passed by learned Additional Sessions Judge, West-Islamabad, in case FIR No. 279, dated 04.04.2022, offence under Section 406, P.P.C., registered at Police Station Noon, Islamabad.
2. It is alleged that the petitioner issued a cheque amounting to Rs. 50,00,000/- (Rs. Five Million) to Respondent No. 2/accused for the purchase of land at village noon Islamabad; Respondent No. 2/accused encashed the cheque but did not transfer the land in the name of complainant, hence FIR was registered.
3. Learned counsel for the petitioner, inter alia, contends that sufficient evidence is available against Respondent No. 2/accused; encashment of cheque by him is admitted; order passed by learned ASJ is non-speaking, stereotype and against the norms of justice, hence liable to be recalled.
4. Arguments heard, record perused.
5. It is alleged in the FIR that the petitioner/complainant issued a cheque to Respondent No. 2/accused regarding purchase of land in Khasra Nos. 300 to 399 at village noon, Islamabad; Respondent No. 2 encashed the cheque but neither returned the amount nor transferred the land in the name of complainant/petitioner.
6. When confronted, learned counsel for the petitioner states that there was a verbal agreement between the parties regarding sale of land and further states that Respondent No. 2/accused admits the agreement/commitment for sale of land in favour of the petitioner/ complainant.
7. Under Section 406, P.P.C., essential ingredients for the offence of criminal breach of trust are as follows:-
a) Entrustment.
b) Dishonest misappropriation or conversion to his own use by the person in whom the confidence reposed.
c) Dishonest use or disposal of property in violation of any direction of law.
d) Dishonest use or disposal of property in violation of any legal contract.
In view of above ingredients of criminal breach of trust, breach of any term of agreement to sell does not fall within the above mentioned criteria as the agreement to sell has been 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 has been 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. It is agreed to perform the obligation whereas payment of money does not fall within the preview of "entrustment" of property in terms of Section 406, P.P.C., even otherwise, there is no misappropriation if the seller after receiving the sale consideration or part of sale consideration refused to transfer the property or failed to abide the terms of agreement as the said failure or breach of terms could not 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. As a result of said evaluation by the Court of law either the defendant has been directed to perform the contract or pay the damages under the said law.
8. The above referred scheme of law under 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 could only be assessed by the criminal Court whereas the agreement does not fulfill the requirement of criminal breach of trust. Reliance is placed on a case titled as “Muhammad Nawaz vs. SHO, Police Station, Sabzi Mandi, Islamabad and others.” (2017 PCr.LJ 133).
9. Contents of the FIR clearly show that complainant has given the above mentioned sum of money to the accused/Respondent No. 2 for purchase of land and not by way of entrustment. It has been held by Hon’ble Supreme Court of Pakistan in a case titled as “Shahid Imran vs. The State and others” (2011 SCMR 1164) that:
“The law clearly recognizes a distinction between payment/investment of money and entrustment of money or property as in the former case the amount of money paid or invested is to be utilized for some purpose whereas in the latter case that sum of money or property is to be retained and preserved for its return to the given and the same is never meant to be utilized for any other purpose.”
It is further held that:
“Agreement or contract does not ipso facto attract the definition of criminal breach of trust contained in Section 405, P.P.C. and such a breach is not synonymous with criminal breach of trust without there being a clear element of entrustment therein which entrustment has been violated.”
Reliance in this regard is also placed on following case laws:
i. “State of Gujrat vs. Jaswantlal Nathalal” (AIR 1968 SC 700)
ii. “Punjab National Bank and others vs. Surendra Prasad Sinha” (1994 PSC (Crl) 768)
iii. “Shaukat Ali Sagar vs. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others (2006 PCr.LJ 1900)
iv. “Ghulam Ali vs. Javid and another” (1989 PCr.LJ 507)
v. “Nga Po Seik vs. Emperor (1917 Indian Cases 824)
vi. “Kornai Lal Dutta vs. The State” (AIR 1951 Cal 206)
10. The petitioner has only leveled bald allegation of misuse of concession of bail in the contents of bail petition but no specific allegation/occurrence is mentioned/argued.
11. As the Respondent No. 2/accused has been granted bail before arrest by the Court of learned Additional Sessions Judge, West-Islamabad; principles for grant of bail and its cancellation are different, it has been held by the Hon’ble Supreme Court of Pakistan in a case titled as “Sami Ullah and another vs. LaiqZada and another” (2020 SCMR 1115), that:
“Bare perusal of provision of Section 497(5), Cr.P.C. it do not demonstrate any specific ground to press into the pretense of said provision of law, however, superior Courts of the country from time to time have enunciated certain principles governing cancellation of bail and those are in field with unanimous concurrence since considerable time. Those are enumerated as under:-
i) If the bail granting order in patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.
ii) That the accused has misused the concession of bail in any manner.
iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.
iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of Court.
v) That the accused has attempted to interfere with the smooth course of investigation
vi) That accused misused his liberty while indulging into similar offence.
vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.
12. Ordinarily the superior Courts are reluctant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters. The rationale behind is that once concession of bail is granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused who is otherwise clothed with free life, as a consequence of concession and if any view is taken by the Court it would be synonymous to curtailing the liberty of said accused prior to completion of trial, which otherwise is a precious right guaranteed under the Constitution of the country. Reliance is placed on case titled as “Sharif Khan vs. The State and another” (2021 SCMR 87).
13. Considering the above facts and circumstances, I am clear in my mind that the petitioner has failed to make out a case for cancellation of bail granted to Respondent No. 2 by the learned Additional Sessions Judge, West-Islamabad vide order dated 16.05.2022, consequently, the instant petition is dismissed in limine being meritless.
14. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner.
(A.A.K.) Petition dismissed
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