2017 PLP 100 (MLD)

NAIMATULLAH PHULPOTO, J.--Applicant/accused Mst. Shahnaz Nayar seeks pre-arrest bail in Crime No.42/2014 registered at Police Station City, Hyderabad against the accused for offence under section 489-F, P.P.C.

2. The brief facts of the prosecution case as disclosed in the FIR are that complainant Muhammad Chuttal Asim lodged FIR on 18.05.2014, alleging therein that applicant/accused requested the complainant for some money and he gave her Rs.10,00,000/-, she had undertaken that 50% interest will also be paid. He has further stated that applicant/accused issued Cheque No.8788871 dated 02.05.2014 of her account No. AK98HABB 0000 680039846701 of HBL Station Road Branch, Hyderabad in favour of applicant and on presentation, it was dishonoured. Thereafter, complainant approached the accused but he was kept on false hopes. Finding no other way, complainant lodged the aforesaid FIR against the applicant/accused. Thereafter, applicant/ accused apprehended her arrest and filed bail before arrest application before learned IIIrd Additional Sessions Judge Hyderabad, the same was rejected vide order dated 23.08.2014.

3. Learned advocate for the applicant/accused contended that FIR has been lodged by complainant with mala fide intention. He has submitted that prior to lodging of the FIR, petition was filed by the applicant/accused before this Court on 26.04.2014 regarding harassment caused to her by the complainant. He further argued that petitioner had lodged N.C at Police Station Qasimabad on 30.04.2014 in which she had stated that her purse and other articles have been snatched. It is also argued that some amount of complainant was outstanding against husband of applicant/accused namely Waseem Abbas and complainant has lodged FIR against accused by taking the cheque book from her purse. Lastly, it is argued that investigation has been completed and the applicant/accused is no more required for investigation and alleged offence does not fall within the prohibitory clause of Section 497, Cr.P.C. Serious mala fides on the part of complainant and police have been alleged. In support of his contentions, learned counsel has placed reliance on the case of Mian Allah Ditta v. The State and others, reported in 2013 SCMR 51.

4. Learned D.P.G. assisted by complainant argued that complainant paid Rs.10,00,000/- to accused as loan and applicant/accused issued cheque of Rs.15,00,000/-. It is argued that applicant/accused had issued cheque dishonestly, it has been dishonoured. Bail application was opposed.

5. Having heard the learned counsel for the parties at some length, I have come to the conclusion that applicant/accused has made out a case for grant of pre-arrest bail, for the reasons that prior to the date of issuance of cheque, applicant had filed Constitution Petition before this Court against the complainant on 26.04.2014 and N.C was also lodged by applicant/accused on 30.04.2014 at Police Station Qasimabad, Hyderabad, in which it was alleged that some articles of the applicant/ accused including purse have been taken away/stolen. The circumstances indicate that cheque in question was not issued towards repayment of some outstanding loan or fulfillment of an existing obligation. Yet it is to be proved at trial whether cheque was issued with dishonest intent. The invocation of penal provision would therefore remain a moot point. Therefore, prima facie, ingredients of Section 489-F, P.P.C. are not satisfied. Rightly, reliance has been placed upon the case of Mian Allah Ditta v. The State and others (2013 SCMR 51).

6. Moreover, alleged offence does not fall within the prohibitory clause of Section 497, Cr.P.C. Applicant is a woman and the case has been challaned. Serious mala fides on the part of complainant and police have been alleged. Therefore, a case for grant of pre-arrest bail is made out, therefore, interim pre-arrest bail already granted to the applicant/ accused is hereby confirmed on same terms and conditions.

7. Needless to mention here that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by said observations. SL/S-5/Sindh Bail allowed.