When the trial is near completion, the fate of the case should not ordinarily be decided under Section 265-K of the CrPC. There may however be such exceptional circumstances which may justify departure from the said rule, as there is hardly any rule of practice which does not admit exception(s). Even otherwise, Section 265-K of the CrPC provides that the trial court can make an order of acquittal at any stage of the case, and such stage may be an initial stage of the case on taking cognizance before recording of the prosecution evidence, or it may be a later stage of the case after recording of some evidence of the prosecution. No absolute bar, in derogation of the law, can therefore be put on the statutory power of the trial court to entertain an application under Section 265-K, CrPC and decide upon its merits at a later stage of the trial if the exceptional circumstances of the case call for so doing to prevent the abuse of the process of court or to secure the ends of justice. The High Court has, however, failed to appreciate that the said rule has no application to a ground pleaded by an accused for his acquittal under Section 265-K of the CrPC, which does not require appraisal of the prosecution evidence recorded during trial, such as, the ground pleaded by the Petitioners in the present case.
Ordinarily, an accused, who invokes Section 265-K CrPC for his acquittal, pleads that there is no probability of his being convicted of any offence in the case on any of the following four grounds:
(i) that even if the facts alleged by the prosecution are taken to be true on their face value, they do not make out/constitute the commission of any offence by the accused;
(ii) that there is no evidence or incriminating material on record of the case in support of the commission of the alleged offence by the accused;
(iii) that the evidence or incriminating material collected during investigation in support of the commission of the alleged offence and proposed to be produced during trial is insufficient and, even if recorded, will not sustain conviction of the accused, of any offence in the case; and
(iv) that the prosecution evidence so far recorded does not make out a case for conviction of the accused, of any offence in the case and the remaining prosecution evidence, even if recorded, will not improve the prosecution case against the accused in any manner.
It is this fourth ground that attracts the application of the rule of practice and priority referred to by the High Court and, that too, when the trial is near completion, that is, when almost the whole of the prosecution evidence has been recorded. The wisdom behind the rule is that the appraisal of almost the whole prosecution evidence, when the trial is near completion, for deciding the application under Section 265-K CrPC amounts to prejudging the case before the final judgment which not only reduces the sanctity and strength of the final judgment, but may also prejudice the case of the other accused, if any, undergoing trial. Any such exercise does not, therefore, serve the ends of justice. This rule thus has no relevancy or application to the first three grounds, which do not involve the appraisal of the prosecution evidence recorded during trial.
Essential ingredients of the offence of criminal breach of trust as defined in Section 405 and 409 PPC and in Section 9(a)(x)&(xi) of the NAB Ordinance, explained..
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The bare reading of Section 9(a)(x) of the NAB Ordinance shows that it applies only to the commission of the offence of criminal breach of trust with regard to a property entrusted to the accused by members of the public at large, while Section 9(a)(xi) of the NAB Ordinance relates to the commission of the offence of criminal breach of trust in respect of a property which was entrusted to the accused in his capacity as a banker, merchant, factor, broker, attorney or agent.
Although the “entrustment” of property within the meaning of Section 405, PPC does not envisage the creation of a formal trust with all the technicalities of the law of trust, it does contemplate that to constitute entrustment the accused must have held the property in a fiduciary capacity. The word “trust” has been used in Section 405 in the ordinary sense of that word, and covers not only the relationship of trustee and beneficiary but also that of bailer and bailee, master and servant, pledger and pledgee, guardian and ward, and all other relations that postulate the existence of a fiduciary relationship between the complainant and the accused.10 The entrustment of property implies that the ownership of the entrusted property vests in a person other than the one who is entrusted with it. If the property belongs to and is owned by the accused in his own right, it cannot be said that he was entrusted with that property and that by using or disposing of that property he committed the offence of criminal breach of trust. “Entrustment” is an essential ingredient of the offence of criminal breach of trust as defined in Section 405, PPC; therefore, where there is no entrustment of property, there can be no criminal breach of trust.
In a welfare State, the legislature enacts laws in public interest for the regulation of some trades or businesses by statutory bodies or Government functionaries.12 Such regulation may involve obtaining of licenses and permits to conduct a certain trade or business; impose reasonable terms and conditions as to how that trade or business is to be conducted; and control the production, distribution and consumption of any commodity during the conduct of that trade or business. The control on the production, distribution and consumption of some commodity, however, does not affect any change in the legal relationship between the contracting parties, nor does it alter the legal character, substance and consequence of the commercial transactions.13 Such regulation does not change the private nature of the trade or business.
C.P.620/2021
Abbas Haider Naqvi and another v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and other
Mr. Justice Syed Mansoor Ali Shah
25-05-2022
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