ORDER SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR

BENCH BAHAWALPUR.
JUDICIAL DEPARTMENT
Crl.Misc.No.771-B of 2013.
Rwaidah Bibi Vs. The State etc.

S.No.of order/ Date of order/ Order with signature of judge, and that
Proceedings. Proceedings of parties or counsel, where necessary.

22.5.2013. Ch. Riaz Ahmed, Advocate for the petitioner.

Mr. Asghar Ali Gill, Deputy Prosecutor-General, with
Fayyaz, SI.
Malik Mukhtar Ahmed, Advocate for the complainant.

Petitioner seeks after arrest bail in case FIR

No.465/2012 dated 16.9.2012 registered under Sections
406, 420 read with Section 506-B of The Pakistan Penal
Code, 1860 at police station City Ahmedpur, District
Bahawalpur.
2. Allegations in brief as contained in the Crime
Report against the petitioner are that she alongwith other
co-accused misappropriated gold ornaments weighing 21-
tolas and 8-masha belonging to the complainant and on
demand there are threats by the petitioner’s side to the
complainant of dire consequences.
3. The learned counsel for the petitioner has
maintained that the provisions of Section 406 of PPC are
not attracted from the bare reading of the FIR and if at all
any grievance of the complainant against the petitioner is
made out i.e. of civil/contractual nature and in case the
complainant is aggrieved he may approach the civil courts
concerned so as to get his grievance redressed if so
advised.
4. On the other hand, the learned DPG assisted by
the learned counsel for the complainant has vehemently
opposed the bail application and stated that all offences
levelled against the petitioner are made out and the
Crl.Misc.No.771-B/2013. 2

prosecution evidence in this regard is intact. Since there

has been misappropriated of gold ornaments hereinafter,
therefore, the petitioner is not entitled to the concession of
bail after arrest.
5. Arguments heard. Record perused.
6. Before discussing this petition on merits it is
important to understand and comprehend Section 405 of
the PPC as the case of the prosecution rests on Section 406
PPC. Bare perusal of Section 405 of the PPC states that if
a person gives money to another person for the purpose of
investment in business and equal amount of money
alongwith profit was to be returned by the later such
business transaction could not attract the provisions of
Section 405 of the PPC, such transaction for all intents and
purposes was not entrustment of property but simply one
of investment in property. The said view has been taken
by this Court in the case of “SHAUKAT ALI SAGAR v.
STATION HOUSE OFFICER, POLICE STATION
BATALA COLONY, FAISALABAD and 5 others” (2006
P.Cr.L.J. 1900), ”MUHAMMAD AKRAM LONE SAEED
v. THE STATE” (2008 P.Cr.L.J. 1351), “MUHAMMAD
RIZWAN v. THE STATE” (2008 P.Cr.L.J. 2169), “ZAHID
JAMEEL v. S.H.O. and 2 others” (2008 YLR 2695) and
“SAJJAD AZMAT CHAHAL v. THE STATE and another”
(2011 MLD 459). Now coming to the prosecution story of
this case, according to the FIR as narrated by the
complainant it was settled that the alleged ornaments
i.e.21-tolas and 08-masha were given to the petitioner as
investment against which profit was to be given to the
complainant’s side by the petitioner. It was not
entrustment to hold a property in question in a fiduciary
capacity. Therefore, I am in agreement with the learned
counsel for the petitioner when he says that the provisions
of Section 406 are not made out from the bare reading of
the FIR, as no entrustment was made by the complainant’s
Crl.Misc.No.771-B/2013. 3

side. Another admitted aspect of the case is to the effect

that the petitioner has a suckling baby namely Mah Noor
who was born on 10.4.2012 and the petitioner is behind
the bar in this case since 09.10.2012. After arrest she
joined the investigation during which no recovery was got
effected from the petitioner. It is an admitted fact that the
petitioner is mother of a daughter who is a suckling baby
aged one year and approximately two months old.
Reliance in this regard has been made by the learned
counsel for the petitioner upon “Mst. NUSRAT v. THE
STATE” (1996 SCMR 973), wherein it has been held by
the Hon’ble Supreme Court of Pakistan as under:-
“Suckling child of accused was kept with mother in jail
obviously for his welfare---Concept of “welfare of minor” was
compatible with jail life---Instead of detaining the innocent
child/infant in the jail for the crime allegedly committed by his
mother, it was in the interest of justice as well as welfare of
minor if the mother was released from jail.---“
Similar view has been adopted by this Court in a
number of cases.
Reliance has also been placed upon “GHULAM
SAKINA and others v. THE STATE” (1991 P.Cr.L.J.1316),
“Mst. IRSHAD alias Mst. WAZIRAN v. THE STATE”
(2000 P.Cr.L.J.613), “Mst. LATIFAN BIBI v. THE
STATE” (2006 P.Cr.L.J.251), “THE STATE v. FARZANA
KAUSAR” (2008 YLR 2600), “NASREEN BIBI v. THE
STATE” (2011 YLR 1028), and “Mst. KABELA v. THE
STATE” (2011 YLR 2975). In all the said verdicts of this
Court, a mother of a suckling baby has been given the
right to the concession of bail.
Apart from the said, on the face of it the petitioner has
not committed any crime with the complainant and is not a
witness to the entrustment that he has alleged according to
the prosecution story. Though in-complete challan has
been submitted in the trial court but there is yet to be any
Crl.Misc.No.771-B/2013. 4

progress, which accordingly is at initial stage and as such

in absence of any exceptional circumstances grant of bail
to an accused is a right, which should be given to the
accused and refusal is an exception as held by the Hon’ble
Supreme Court of Pakistan in “ZAFAR IQBAL v.
MUHAMMAD ANWAR and others” (2009 SCMR 1488)
“RIAZ JAFAR NATIQ v. MUHAMMAD NADEEM DAR
and others” (2011 SCMR 1708) and “TARIQ BASHIR
and 5 others THE STATE” (PLD 1995 SC 34).
7. For what has been discussed above and
particularly keeping in view the fact that the petitioner is a
mother of suckling baby while following the dictum laid
down by the Hon’ble Supreme Court of Pakistan in “Mst.
NUSRAT (supra) and the case lodged against her falls
within the ambit of further inquiry as no exceptional
ground has been made out by the prosecution so as to deny
the petitioner her liberty as she is behind the bar since
09.10.2012 i.e. approximately seven months and there is
no likelihood of the conclusion of trial in the near future,
therefore, this petition is accepted and the petitioner is
admitted to after arrest bail till the final decision of the
case subject to furnishing bail bonds in the sum of
Rs.10,00,000/- (rupees one million only) with one surety
in the like amount to the satisfaction of the learned trial
court.
8. Before parting with this order, it is however,
clarified that the reasons given in this order are tentative in
nature and it will have no effect upon the merits of the
case in accordance with law.
(Shahid Bilal Hassan)
Judge
Announced in open Court on _________________.

Judge.
Asif