2011 PLP 117 (MLD)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Asghar Zahid by way of the instant petition has prayed for after arrest bail in case F.I.R. No.792 registered under section 489-F, P.P.C. with Police Station Kot Lakhpat, Lahore on 28-8-2007. It was on the written application of respondent No.2/complainant Altaf Hussain.

2. He has alleged in the F.I.R. that he has kept an amount of Rs.11,00,000 with his friend Muhammad Asghar Zahid as trust. He when demanded back his money from him, he gave him a cheque of that amount drawn on the National Bank of Pakistan, Ismail Nagar Branch, Chunghi Amar Sadhu, Lahore, which on presentation to the bank was dishonoured.

3. The brief background leading to the institution of the present petition is that the petitioner was arrested in this case. He moved for similar relief before the learned Illaqa Magistrate concerned. In the meanwhile, the parties reached to a compromise. The complainant appeared before the Court seized of his such petition and filed his affidavit there to the effect that he has reached to a compromise with him (petitioner) and has no objection on the grant of bail to him. On such reason, the learned Magistrate, while observing his case as one of further inquiry, allowed him such relief on 28-5-2008. Later on, perhaps, the petitioner did not abide by the terms of the compromise. The complainant, therefore, was constrained to bring the petition for cancellation of bail extended to him. The petitioner did not appear before the Court in such petition. Consequently, on 20-10-2008, the learned Magistrate recalled the relief of bail extended to him on 28-5-2008. He, in consequence of such an event, was arrested later on. He moved for such relief before the Sessions Court. This time on 28-8-2010, the learned Additional Sessions Judge, Lahore did not find his case to be fit for bail. He, so, declined such relief to him. He, now, with the instant petition has come to this Court for the relief.

4. After hearing the learned counsel for the parties and perusing the record, I find that the simple question involved in the present matter is that whether he in the given circumstances is entitled to the relief as asked for by him. The answer to the same is in the affirmative. He is stated to be behind the bars since 20-5-2010. This period comes to more than four months.

5. Although, according to the learned counsel for respondent No.2/complainant, he is also involved in three other cases of the type but admittedly he is not convicted in any of these cases.

6. The fact also remains that the alleged offence does not attract the prohibition contained in section 497(1), Cr.P.C. The grant of bail in such-like cases is a rule and refusal an exception. I hardly find any exceptional circumstance to warrant refusal of the relief to him, particularly, when he earlier had remained' behind the bars and now again is there. The factum of compromise between the parties and his non-adherence to its terms is a distinct matter between the parties. A Court exercising criminal jurisdiction cannot go to an extent that it may amount to enforcing the right between the parties in some other context. The matter of the type as is under discussion is to be decided simply in accordance with law, particularly, with reference to the determination of question of bail.

7. It has been pointed out by the prosecution that he has remained an absconder. This but itself is not a clog in his way for grant of bail to him because of the fact that he now is behind the bars for the last more than four months and his case, even otherwise, has been found to be fit for bail.

8. In these circumstances of the case, I find that the case for his enlargement on bail has been made out.

9. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only)-with two sureties each in the like amount to the satisfaction of the learned trial Court. N.H.Q./A-230/L Bail allowed.