2019 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Applicant is present on interim pre-arrest bail granted to him by this Court, vide order dated 11.03.2019, in Crime No.09 of 2019 of P.S. Gharibabad District Mirpurkhas, under sections 489-F and 420, P.P.C. Today, this bail application is fixed for confirmation of his interim pre-arrest bail or otherwise.

2. Briefly, the facts of the prosecution case are that, complainant lodged FIR stating therein that he was Marketing Manager and General Manager of Thar Production, whereas applicant Syed Hassan Ali Shah was proprietor and they were dealing with the business of Audio and Video Cassettes. On 01.06.2015 till 30.03.2014, the applicant did not settle the account of the business of Cassettes and due to such dispute he refused to work with the applicant and since then the dispute could not be resolved. He then approached to the Nek-Mards for faisla and after resolving the dispute, applicant issued cheque Bearing No.03084540 dated 02.04.2018 for an amount of Rs. 1,98,76,000/- of Bank Al-Fatah Limited, Umerkot Branch, Mirpurkhas. The complainant presented the said cheque before Meezan Bank Limited, Umerkot Branch, Mirpurkhas, which was dishonored with a memo of insufficient funds in the said account. Thereafter, the complainant time and again contacted with the applicant and demanded the said amount; however, the applicant refused to pay the said amount, hence, the complainant lodged FIR.

3. It is contended by the learned Counsel for the applicant that the applicant has been involved in this case by the complainant malafidely; that the instant FIR has been lodged after delay of 04 months and 17 days, which has not been plausibly explained by the complainant; that the complainant has concealed the actual facts and he has not come with clean hands; that the dispute between the parties is of civil nature which is already pending adjudication before the learned District-Judge, Lahore; that all the PWs are interested, friends and inter-se related to the complainant, therefore, there is no chance of tampering with the prosecution evidence; that section 420, P.P.C. contained in the FIR is concerned, the applicant has not committed any fraud, which section otherwise is bailable, while section 489-F, P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, the case of the applicant requires further inquiry. He lastly prayed for confirmation of interim pre-arrest bail already granted to the applicant. He has cited the cases of Mian Allah Ditta v. The State (2013 SCMR 51) and Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70).

4. Conversely, learned Counsel for the complainant assisted by the learned D.P.G. has vehemently opposed to the grant of bail to the applicant while contending that the applicant has cheated the complainant by issuing fake cheque, which has clearly been dishonoured by the bank, therefore, the bail plea of the applicant is liable to be dismissed.

5. I have heard the learned counsel for the applicant, learned Counsel for the complainant as well as learned D.P.G appearing for the State and have perused the material available on the record.

6. A perusal of the available record suggests to draw an inference that there was a business deal between the parties. The complainant's version is that the applicant cheated him by issuing bogus cheque which on presentation before the concerned bank was dishonoured. In the present case; admittedly, there is delay in lodging of FIR i.e. 04 months and 17 days and such delay has not been satisfactorily explained by the complainant in the FIR. It is an admitted position that the name of the present applicant appears in the FIR; however, the dispute arose between the parties is of civil nature, which itself needs evidence and for such evidence the matter is pending adjudication before the competent Court of law. In my humble view, the cases where generally the prescribed punishment does not fall within the prohibitory clause of section 497, Cr.P.C. then grant of bail is a rule while its denial is an exception. No doubt, that an accused can claim bail as of right in non-bailable offence but on the other hand, bail can also be not withheld as punishment. Bail of an accused can only be refused when there is likelihood of absconsion, apprehension of tampering with the prosecution evidence by accused, danger of repetition of the offence if the accused is enlarged on bail and where the accused was a previous convict, hardened criminal, then bail may not be granted. In such circumstances, the applicant has made out his case for grant of bail. It is settled principle of law that if there creates some doubts in the case of any accused even at the bail stage, the benefit of which, is to be extended to an accused. The invocation of penal provisions would, therefore, remain on moot point, therefore, prima facie, the ingredients of section 489-F, P.P.C. are missing in the present case. In this regard, reliance is placed on the cases of Mian Allah Ditta v. The State and others (2013 SCMR 51) and Mian Muhammad Akram v. The State and others (2014 SCMR 369). Per learned counsel, the challan in this case has already been submitted by the Police before the competent Court of Law and the applicant/accused is regularly attending both the Courts viz. the trial Court as well as this Court and has never misused the concession of bail granted to him by this Court. I am fortified by the case of Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733), wherein it has been observed as under: "We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained, in section 497, Cr.P.C. invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation."

7. In view of the foregoing, I am of the considered opinion that the applicant has successfully made out the case for confirmation of his interim pre-arrest bail. Accordingly, interim pre-arrest bail already granted to the applicant, vide order dated 11.03.2019; was confirmed on the same terms and conditions by a short order dated 05.04.2019 announced in open Court. However, the complainant is left at liberty to file application for cancellation of pre-arrest bail granted to the applicant, if during trial he misuses the concession of pre-arrest bail or attempts to tamper with the prosecution evidence and same will be decided by the competent Court of law fully in accordance with law. Further, the learned trial Court shall proceed with the case expeditiously and decide the same preferably within a period of 03 (three) months after receipt of this order.

8. Needless to mention that the observations made hereinabove are tentative in nature and shall not in any way affect the merits of the case of either party at the trial and/or influence the trial Court at the time of deciding the case. SA/H-25/Sindh Bail confirmed.