2014 PLP 799 (MLD)

MAHMOOD AHMAD BHATTI, J.

Muhammad Azhar, the petitioner has moved this petition for the grant of pre-arrest bail in case F.I.R. No.571/2013 dated 15-8-2013 registered under sections 420, 468 and 471 P.P.C. at Police Station Model City, Lodhran, District Lodhran.

2. The above case was registered on the written application of Muhammad Iqbal, the complainant who alleged that he obtained loan of Rs.1,00,000 (Rupees One Hundred Thousand) from Muhammad Azhar, on 20-6-2013. The complainant executed a promissory note/pronote in favour of Muhammad Azhar. It was further alleged by him that on the very same day, viz. 20-6-2013 he paid back Rs.1,00,000 to the accused/petitioner, in addition to Rs.25,000 which was received by him by way of interest. He went on to allege that having liquidated the debt, Muhammad Azhar returned him the pro note as well as the blank stamp paper but the pro note delivered back to the complainant, Muhammad Iqbal turned out to be a fake, forged and fabricated document.

3. It is the contention of learned counsel for the petitioner that the complainant has had ulterior motive to implicate the petitioner in the case. It was pointed out by him that the offence under sections 468 and 471, P.P.C. are non-cognizable, while the offence under section 420, P.P.C. is bailable, and there is nothing on the record to show that the police sought permission from the Area Magistrate to carry out investigation regarding non-cognizable offence. He submitted that the accused/petitioner has already instituted a suit against the complainant for the recovery of Rs.10,00,000 on the basis of promissory note/ pro note dated 20-6-2011, which has been pending adjudication in the court of learned Additional District Judge, Lodhran since 19-5-2012, while the F.I.R. in question was on 15-8-2013, which per se is a pointer to the mala fide of the complainant. What he intended to drive at was that the registration of the case against the petitioner was sheer abuse of process of law, and this is simply aimed at pressuring the petitioner into withdrawing the civil suit pending against the complainant. He further argued that even taking the contents of the F.I.R. at their face value, the alleged occurrence took place on 20-6-2013, meaning thereby that there is unexplained delay of almost two months.

4. Learned A.P.-G., opposes the granting of pre-arrest bail to the petitioner, submitting that the petitioner stands nominated in the F.I.R.; that there is allegation of cheating, forgery and fabrication against him. Furthermore the forged document in question is yet to be recovered from the petitioner.

5. Arguments heard. Record perused.

6. It passes apprehension that when the loan was obtained by the complainant on 20-6-2013, why did he pay back the same on the very same day, together with the payment of alleged interest of Rs.25,

000. This raises more questions than it seeks to answer. On the very face of it, there are holes in the story of the prosecution. Again, when a civil suit under Order XXXVII, C.P.C. has been pending adjudication between the very same parties in a competent court of law since 19-5-2012, in which leave to appeal was granted to Muhammad Iqbal, the complainant of the case, why is he intent on settling an account with the plaintiff/accused-petitioner by launching criminal prosecution? This aspect of the case reflects adversely on the bona fides of the complainant. Even otherwise, the alleged fake, forged and fabricated document handed over to the complainant by the accused/petitioner could very well serve as a defence for him in the suit instituted by Muhammad Azhar, the accused/petitioner. And it would be the court concerned which, after recording evidence for the parties would be in a better position to adjudicate upon as to whether the pro note produced before it by the accused/petitioner was genuine or forged or whether the pro note having been in the custody of Muhammad Iqbal, the complainant is fake, forged and fabricated document. In order to address the grievance of the complainant, section 195 Cr.P.C. is there, but unless this controversy as to the genuineness or otherwise of pro note in question is determined by the learned Additional District Judge, Lodhran, it would not serve the purpose of justice to send the accused/petitioner behind the bars just to placate the complainant, for in that event Muhammad Azhar, the petitioner/accused would be put to disadvantage and his civil suit instituted under Order XXXVII, C.P.C. against the complainant might be prejudiced as well. The delay of almost two months in registration of the case against the petitioner has not been explained away satisfactorily or otherwise. No doubt, the offence under section 420, P.P.C. is bailable, while the offences under sections 468 and 471, P.P.C. are non-cognizable and it could not be verified from the record as to whether the Area Magistrate was approached before undertaking the investigation of the case. There is another striking feature of the case that the report of a handwriting expert is conspicuous by its absence. Needless to say, when the alleged fake, forged and fabricated pro note is in the custody of the complainant, the same could have been taken into custody by the police, sending the same it to the handwriting expert. But nothing of the sort has been done in this case for reasons best known to the prosecution.

7. For what has been stated above, the ad interim pre-arrest bail granted to the petitioner by this Court by order dated 23-10-2013 is hereby confirmed subject to the furnishing of fresh bail/surety bonds in the sum of Rs.1,00,000 (Rupees One Hundred Thousand only) with one surety in the like amount to the satisfaction of learned trial court.

8. It is made clear that this is tentative assessment of the material produced before the court for the purpose of deciding the bail application. Any observation made herein would not have any bearing on the trial of the case, which shall be decided on its own merits. HBT/M-9/L Bail confirmed.