2025 PLP 2005 (MLD)

Muhammad Hasan (Akber), J.

Through the instant bail application, the applicant seeks concession of pre-arrest bail in Crime No.349/2025, registered under Section 489-F, P.P.C at Police Station Darakhshan, Karachi. Earlier, the bail application of the applicant/accused was dismissed by the learned Vth Additional Sessions Judge, Karachi (South) vide order dated 30.05.2025, whereafter the applicant has approached this Court.

2. Brief facts of the case as narrated in the FIR are that Salqain Haider, a property dealer and broker, had entered into a Memorandum of Understanding (MOU) with the complainant on April 14, 2023. The agreement stipulated that Saqlain Haider would purchase several plots in Bahria Town, Karachi, for him in exchange for a total investment of Rs. 50 million, provided through both cash and cheque. The value of each plot was set at Rs. 12,500,

000. A formal agreement was signed between them, but Saqlain Haider later took additional money from the complainant. As per the agreement, Saqlain Haider was supposed to return a total amount of Rs. 7,400,000 to the complainant. He issued ten cheques for this amount all of which bounced. Subsequently, the complainant filed a complaint with the Gadap police station. On November 26, 2024, a settlement was reached between the parties, wherein Saqlain Haider agreed to return Rs. 6,500,000 to the complainant. He issued eight cheques for this sum, including three cheques dated December 1, 2024, February 20, 2025, and January 20, 2025, with values of Rs. 4,000,000, Rs. 1,000,000, and Rs. 1,000,000, respectively. These cheques were deposited at Meezan Bank Limited, DHA Phase 2 Extension, and Bank Alfalah Limited, Bukhari Commercial, Phase DHA 6, on December 6, 2024, January 24, 2025, and April 8, 2025, but all of them bounced. The complainant contacted Saqlain Haider regarding the bounced cheques, but she has not received the owed money yet. As a result, the complainant once again filed an application at the police station, leading to the current claim against Salqain Haider for the bounced cheques and the investment amount owed to him.

3. Learned counsel for the applicant has contended that the applicant/accused has been falsely implicated by the complainant with malicious intent, in collusion with the local police. She further contended that the complainant invested in the properties but later sought a refund due to a decline in property values, leading to an MOU being signed on April 14, 2023, with the applicant issuing pay orders as partial repayment. She further contended that the complainant has filed a recovery suit and applicant has also filed an insolvency petition and is suffering from chronic heart conditions, including recent heart surgery. In support of his contention, he relies upon 2024 SCMR 1567, 2023 SCMR 1948 and 2013 SCMR 51.

4. Learned counsel for the complainant has contended that the applicant failed to fulfil his obligations, issuing multiple bounced cheques for a total of Rs. 7,400,

000. He further contended that despite a settlement in November 2024, where the applicant promised to return Rs. 6,500,000, the cheques issued still bounced. He further contended that the applicant's actions are clear evidence of dishonesty and a deliberate attempt to avoid repayment, justifying the refusal of pre-arrest bail. Learned Addl. P.G has supported the case of the complainant.

5. I have considered the arguments advanced by learned counsel for the applicant, learned counsel for the complainant and learned Addl. P.G and have carefully gone through the record.

6. From the facts and record, it appears that there was a Memorandum of Understanding dated 4.4.2023 which was executed between the M/s. Alcazar Builders and Developers and the owner Ms. Parveen Malik, with respect to purchase of four apartments, as available at page 25 of the Court File; Again, there were various Booking Agreements (at pages 53 to 75) executed between them. Thereafter a Declaration was executed and cheques were issued as Guarantee and a Settlement Agreement dated 14 November 2024 between the owner and the present applicant which shows that it was a buy back transaction, whereby earlier 10 cheques were given and thereafter further 9 cheques (a total of 19 cheques) were given, out of which, 10 cheques were to be returned, as per applicant, however such cheques were not returned and according to the applicant the same are now being misused by the complainant in bits and pieces. That a Summary Suit No. 108 of 2025 has also been filed under Order XXXVII, C.P.C. by the complainant against the applicant with respect to earlier 10 cheques. Per applicant, the Vendor of the subject apartments is one Asif Iqbal who did not implement the buying agreement and in the meanwhile the value of the properties decreased, thereby adversely affecting the Buy-Back arrangement. Per applicant, out of actual amount of Rs.74 million more than 10 million has already been some adjusted/ repaid whereas Settlement Agreement is with respect to the remaining 65 million. Record also reflects that an Insolvency Petition No. 1/2025 has been filed by the applicant wherein a restraining Order dated 07.06.2025 has also been passed against the creditors and a Certificate has also been issued to the applicant.

7. At this stage, it appears that the case is primarily documentary in nature, based on agreements part payments and checks as Guarantee. The factual controversy as to whether the applicant acted with fraudulent intent from the inception or whether the dispute has evolved into a civil liability is a matter which can only be determined after recording of evidence at trial. The settled principle of law is that where a transaction gives rise to both civil and criminal liability, the element of fraudulent intention must be determined on the basis of evidence, and until such determination, the matter may fall within the scope of further inquiry. It is also relevant that the applicant has been on interim pre-arrest bail without any complaint of misuse of the concession. The cheques are already in possession of the complainant, and no recovery is to be effected from the applicant, therefore, his arrest at this stage would serve no useful purpose for the prosecution. The applicant has also brought on record medical grounds, including recent heart surgery and chronic cardiac illness, which further makes his custodial arrest unnecessary and likely to cause undue hardship. Record further reflects that a Civil Suit No. 7068/2025 filed by the applicant is also pending adjudication, which has been filed with respect to the same subject cheque(s) and the present complainant is a Defendant in the said suit. It is also claimed by the applicant that during course of their business transactions the claimed amounts have been repaid by him, which is also required to be considered during trial. All these facts bring the case of the applicant within the ambit of Further Inquiry as envisaged under section 497(2) Cr.P.C. The applicant is detained since 28.04.2025 whereas the maximum punishment for offence under section 489-F, P.P.C. is three years which does not fall under the prohibitory clause of section 497, Cr.P.C, thereby entitling the applicant to the concession of bail on the strength of 'Muhammad Sarfaraz v. The State 2014 SCMR 1032.

8. In the case of 'Mian Allah Ditta v. The State and others' 2013 SCMR 51 it was held by the Honourable Supreme Court that every transaction where a cheque is dishonoured would not constitute an offense in the absence of dishonesty. In 'Ali Anwar Paracha v. The State' 2024 SCMR 1596 it has been held by the Supreme Court that the foundational elements to constitute an offence under section 489-F are the issuance of cheque, with dishonest intent, and the issuance of cheque towards repayment of loan or fulfilment of an obligation. In 'Abdul Rashid v. The State, 2023 SCMR 1948 and 'Khizer Hayat v. The State' 2021 MLD 1597 the Supreme Court has held that where there was business relationship between the parties and the cheques mentioned in the FIR were issued as Surety or Guarantee, the same were held as falling short of the requirements of an obligation within the meaning of section 489-F, P.P.C. and on such ground, the case was held to be of further enquiry and bail was granted. A Three-Member Bench of the Honourable Supreme Court in an Unreported Judgment dated 03.06.2024 in 'Muhammad Anwar v. The State and another, in Criminal Petition for Leave to Appeal No.340 of 2024 it was held that where cheque was given as a Security, the elements of section 489-F P.P.C. are not attracted and bail was granted. In the case of 'Muhammad Tanveer v. The State' 2023 SCMR 581 where a civil suit for declaration with respect to the subject transaction was pending adjudication before the court of competent jurisdiction, it was held that the possibility of ulterior motives cannot be ruled out. In 'Noman Khaliq v. The State' 2023 SCMR 2122, a case where there was business relationship between the parties and the allegation of dishonour of cheque under section 489-F, P.P.C was levelled, it was observed that the provision of section 489-F, P.P.C are not intended by the legislature to be used for recovery of an alleged amount but civil proceedings provide remedies inter alia under Order XXXVII, C.P.C. In this view of the matter the question whether the cheques were issued towards repayment of loan or fulfilment of an obligation within the meaning of section 489-F, was held to be a question which should be resolved by the trial Court after recording evidence. Lastly, as regards the last objection raised by the law officer regarding multiple FIRs, attention is drawn towards Ali Anwar Paracha supra and 'Zafar Nawaz v. The State' 2023 SCMR 1977 holding therein that mere registration of other criminal cases against an accused does not disentitle him for the grant of bail.

9. Upshot of the above discussion is that, without touching the merits of the case on a tentative assessment and following the ratio settled in the cases discussed above, this appears to be a clear case of multiple civil transactions between the parties wherein not only a Summary Suit but Insolvency Petition has also been filed and certain Orders have also been filed, whereas versions of both sides and determination of final liability is yet to be made, which makes it a case of Further 'Inquiry under section 497(2)' Cr.P.C. and makes the applicant entitled to bail. The interim pre-arrest bail granted to the applicant vide order dated 31.05.2025 is therefore confirmed on the same terms and conditions as already recorded in my short order dated 09.09.2025 and these are the reasons for the same. The observations made herein are tentative in nature and shall not prejudice the case of either party at trial. MQ/S-64/Sindh Bail granted.