ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 532 of 2016

 

Applicant:                             Imran Yaqoob s/o. Muhammad Yaqoob,

                                                through Mr. Aamir Mansoob Qureshi,

                                                Advocate.

 

Respondent:                          The State, through Mr. Muntazir Mehdi, APG.

 

Complainant:                        Syed Mustaqeem Ahmed, through Mr. Mustafa

                                                Safvi, Advocate.

                                               

Date of hearing:                    18.01.2017

Date of order:                        18.01.2017

-----------------

                                               

O R D E R.

 

Zafar Ahmed Rajput, J:-     Having rejected his first bail application bearing Criminal Bail Application No. 45 of 2015 by the learned Judicial Magistrate-XII, Karachi South and second Bail Application bearing Criminal Bail Application No. 2163 of 2015 by the learned Ist Additional Sessions Judge, Karachi South,  applicant/accused Imran Yaqoob s/o. Muhammad Yaqoob, through instant Criminal Bail Application seeks post arrest bail  in Crime No. 237 of 2015 registered at PS Garden, Karachi South, under Section 420/406/506(II)/34 P.P.C.   

 

2.         Precisely, the facts of the prosecution case are that complainant Syed Mustaqeem Ahmed s/o. Syed Habib Ahmed lodged the aforementioned F.I.R., alleging that he deals in rice, Sajjad Yaqoob, his brother Munna and two other persons met him at Judia Bazar and told him that they also deal in rice and they were urgently in need of Super Karnal Basmati Rice for export and asked him to provide 42 tons of rice and further told him that they would make payment on delivery of the order; as such, on 01.09.2015 he loaded 42 tons rice, which was packed in 420 bags of 100 kilograms each and reached Garden Gate Hotel, where all the above four persons were present. Sajjad Yaqoob sent his brother Munna alongwith other two persons for unloading rice from the container and took the complainant alongwith him in his car and engaged him in conversation. Complainant told him the amount of rice as Rs.29,00,000/- and requested him to make payment, on that he asked him that he would either give him Pay Order for the same or will directly deposit the amount in his account. He further informed the complainant that he was Chairman of United Rice Company and his office is situated in Bungalow No. 77, Aamil Colony, Jamshed Town near Islamia College, Karachi. On the next day the complainant made contact with Sajjad Yaqoob on phone, who asked him to reach Garden Gate Hotel whereupon complainant alongwith his associates, namely, Muhammad Arshad and Ghulam Mustafa went to Garden Gate Hotel, where Sajjad Yaqoob was present alongwith his brother Munna and other two persons and on the demand of payment Sajjad Yaqoob became angry and took out a pistol and pointing it at complainant issued him threats of causing death, if he ever demands rice or money from him. Thereafter, on 19.09.2015 the present applicant was arrested. 

 

3.         The learned counsel for the applicant/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case by the police at the behest of the complainant and even the name of the present applicant does not transpire in F.I.R.; that there is no direct evidence in the case and in absence thereof the case of the applicant is fit for further enquiry; that at the given time and date, the applicant was stationed at Lahore; that sections under which the present applicant has been charged are not applicable as Section 406 P.P.C. is concerned with misappropriation of the property entrusted with  and there is no evidence on record that the accused was ever entrusted with property by the complaint, and section 420 P.P.C., in absence of handing over any property to accused, is also not applicable, while  and section 506(2) P.P.C. does not attract as the applicant was not available in Karachi on the date and time of incident, even otherwise section 406 and 506(2) P.P.C. do not fall under the prohibitory clause of Section 497 Cr.P.C.; as such, the applicant is liable to be released on bail coupled with the fact that he is behind the bars since 19.09.2015.  In support of his contentions, learned counsel for the applicant has placed his reliance upon the cases of Dildar Ali vs. The State (1999 SCMR 1316), Suba Khan vs. Muhammad Ajmal and 2 others (2006 SCMR 66), and Raza Muhammad Sial vs. The State (1988 SCMR 1223).

 

4.         On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the applicant is nominated in the F.I.R. by name of Munna as he was introduced by his brother / co-accused Sajjad Yaqoob with the complainant by such name but when he was arrested by the police at the pointation of complainant, he disclosed his real name as Imran Yaqoob; that after taking delivery of container of 42 tons rice the nominated accused managed to misappropriate the same keeping the complainant on false hopes and they failed to make payment of the agreed amount of Rs.29,00,000/- to the complainant; that later on complainant came to know that Sajjad Yaqoob, his wife Mst. Ayesha Sajjad and his brother Imran Yaqoob alias Munna, the present applicant, belong to an organized gang of criminals and cheaters, who commit financial crimes which fact can be ascertained from their criminal record available in various police satiations of Karachi and other cities and several criminal and civil cases are also pending against them in various Courts of law. So far the plea of alibi is concerned, learned counsel for the complainant has maintained that such plea has not been taken by the applicant before the trial Court; therefore, the same cannot be taken first time before this Court. In support of his contentions, learned counsel for the complainant has placed his reliance upon the cases of Akbar Ali vs. The State (2003 P.Cr.L.J. 385), Ch. Muhammad Ashfaq vs. The State and others (2015 SCMR 1716), Tariq Bashir and 5 others vs. The State (PLD 1995 Supreme Court 34), Karim Bux vs. The State (2000 SCMR 1405), Muhammad Siddique vs. Imtiaz Begum and 2 others (2002 SCMR 442), Raza Muhammad Sial vs. The State (1988 SCMR 1223) and Niaz Ahmed vs. The State 1995 P.Cr.L.J. 1511).

 

5.         Learned APG while adopting the arguments of learned counsel for the complainant has also opposed the grant of bail and while referring criminal record of the applicant, submitted by the Superintendent, District Prison, Malir, Karachi vide letter dated 11.11.2016, he has maintained that besides the case in hand the applicant is also involved in four other criminal cases registered at police stations Jamshed Quarter and Bahadurabad. According to him, sufficient material is available with prosecution to connect the applicant with the commission of alleged offence and under the circumstances of the case the applicant cannot claim bail as a matter of right.

 

6.         I have heard the learned counsel for the parties and perused the material available on record.

 

7.         It is the case of the prosecution that the present applicant is nominated in the F.I.R. by the name of Munna. Offences under Section 406 and 506 (2) P.P.C. are not bailable under the Schedule of offences and are punishable for three (03) years and seven (07) years, respectively. In non-bailable offences that do not fall within the prohibitory clause of Section 497(1) Cr.P.C., the grant of bail is not a right of accused but a concession.

 

8.         I am not convinced by the contention of the learned counsel of the applicant/accused that under the circumstances of the case Section 406 P.P.C. is not applicable in the case of applicant. Section 405, P.P.C. defines criminal breach of trust and for the sake of convenience it is reproduced as under:-

            “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits ‘criminal breach of trust’.”

 

            From the bare reading of above definition of “Criminal Breach of Trust”, following ingredients are essential to constitute an offence:-

(a)   There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted.

 

(b)   The person, in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted.

 

(c)    Dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged.

 

(d)  Dishonestly uses or disposes of that property in violation of any legal contract, express or implied which he has made touching the discharge of such trust.

 

8.         As per the contents of F.I.R. the complainant deals in rice and Sajjad Yaqoob, his brother Munna (applicant/accused) and two other persons asked him to provide 42 tons of rice and undertook to make payment thereof on delivery of the order, as such, the complainant delivered the demanded rice to them, with whom prima facie an implied legal contract was entered into. The property i.e. 42 tons rice was a trust property and by delivering it to accused party including present applicant/accused,  a fiduciary relationship came into existence between the complainant and accused. The violation of the contract, referred to above by the accused, according to the allegations constitute the dishonest intention on the part of the accused. In this regard I am fortified by the decision in case of Muhammad Yaqoob vs. The Senior Superintendent of Police, Gujranwala and 2 others reported as PLD 2000 Lahore 421. Hence, in my tentative assessment the applicant may be charged with the commission of an offence under Section 406 P.P.C. 

 

9.         As regard the plea of alibi, suffice to say it that this plea was not taken by the applicant before the lower Courts in his earlier bail applications; therefore, he cannot take this ground first time in this bail application.

 

10.       The record shows that the present applicant is also involved in Crime No. 70 of 2010 registered at PS Bahadurabad under Section 353, 324, 395, 342, 504, 337-A(i) P.P.C., Crime No. 66 of 2014 registered at PS Bahadurabad under Section 353, 324, 186, 506, 34 P.P.C., Crime No. 67 of 2014 registered at PS Bahadurabad under Section 23(I) of Sindh Arms Act and Crime No. 320 of 2015 registered at PS Jamshed Quarter under Section 23(I)-A of Sindh Arms Act. The alleged involvement of applicant in series of cases related to offence adversely affecting public at large; hence, he is not entitled to concession of bail. I, therefore, dismiss this Criminal Bail Application.

 

11.       Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits.

 

JUDGE

Athar Zai