2010 PLP 2021 (YLR)

SHAHID HAMEED DAR, J.

Ghulam Shabbir seeks bail before arrest in case F. I. R. No. 145 of 2010, dated 4-3-2010 for offence under section 489-F, P.P.C., registered at Police Station, Gulshan-e-Ravi, Lahore on the complaint of Syed Ahmad Ijaz Gillani who, in brief has alleged that accused Ghulam Shabbir handed over a cheques, value Rs.2,50,000 to him which he deposited in his account for encashment but it was returned unpaid due to insufficient funds.

2. It is contended by the learned counsel for the petitioner that the story contained in the F.I.R. is false and baseless which has been fabricated by the complainant to cause. humiliation and harassment to the petitioner; that the petitioner did not issue the cheque in question to the complainant but it was given to the arbitrators who were entrusted with the task of resolving the disputes and controversies between the two sides; that the petitioner is an elected President of Tehreek-e-Tauheed Pakistan, a charitable institution, of which runs a school as well and the petitioner is functioning as its principal; the complainant is not prepared to tolerate the position and status of the petitioner and has entangled him in a false case under a conspiracy; that the complainant side admits that the cheque was given to the arbitrators and it could only be handed over to the complainant if the funds were received from Punjab Education Foundation Assisted School Programme (PEF-FAS); that the complainant received the cheque from the arbitrators deceitfully by telling them that the funds had been received in the relevant account from the concerned sources; that the petitioner has been falsely implicated in this case under malice and ulterior motive of the complainant who, out of heart burning and bias, has lodged the instant case; that the petitioner is an educated person and has no previous criminal record; that the case of the petitioner calls for further inquiry. Relies upon case titled Mazhar Iqbal v. The State 2006 YLR page 406, Major Anwar ul-Haq v. The State PLD 2005 Lahore page 607 and Iftikhar Akbar v. The State 2008 MLD page 159.

3. On the contrary, learned Additional Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the submissions of the learned counsel for the petitioner and contends that the father of the complainant was a philanthropist who in his life time did many charitable works including establishment of Tehreek-e-Tauheed-e-Pakistan, for the welfare and betterment of the society; he also established a school for the children coming from the families of low income and limited means; that the petitioner was employed in this institution by the father of the complainant but he, after the death of the founder of the institution, played many dirty tricks to take over and gulp these institutions; that the petitioner has committed many forgeries and have fabricated a number of documents to cause erosion of the resources of a charitable institution; that the petitioner had dishonestly issued the cheque to the complainant and it has nothing to do with the arbitrators who have been siding with the petitioner for their ulterior motives; that the cheque in question is a bearer cheque and it has been returned unpaid by the bank due to insufficient founds; that another criminal case has been registered against the petitioner for the same offence. Relies upon case titled Riaz Ahmad v. The State 2009 SCMR page 725, Muhammad Bakhsh v. The State 2006 YLR page 23, Muhammad Tariq Javed v. The State 2008 YLR page 947 and Jamil Ahmad and 2 others v. The State 2008 YLR page 1868.

4. Arguments heard. Record perused.

5. It is admitted by both the sides that Tehreek-e-Tauheed Pakistan is a welfare institution, which was established by the father of the complainant who was a philanthropist. It is also admitted that the petitioner was employed as a teacher in a school, established under the auspices of Tehreek-e-Tauheed-e-Pakistan. Syed Ahmad Ijaz Gillani, the founder of the institution died and thereafter a tug and war started between the petitioner and the complainant of this case. Civil suits were filed on both the sides to seek decrees in their favour but it was the institution Tehreek-e-Tauheed Pakistan which was the nucleus point in the said suits. The petitioner though an employee/principal of the school showed over eagerness and he once showed himself the owner of City Public High School, registered under the said Tehreek-e-Tauheed-e-Pakistan.

6. The dispute between the parties was taken to the arbitrators but the matter could not be resolved. The complainant has alleged in the F.I.R. that the petitioner owed lacs of rupees to him but he could not furnish any detail in this regard. The arbitrators have sworn affidavits that two cheques, including the cheque in issue, were given to them by the petitioner as a token of security.

7. The arbitrators are also present in the Court who testify that afore-mentioned cheque had been received by the complainant from them as he told them that the funds from Punjab Education Foundation Assisted School Programme had been received by the bank. The Investigating Officer has also concluded that the complainant misstated before the arbitrators and secured two cheques from them on a false pretext and lodged the instant F.I.R. He has further opined that there exists no monetary dealing between the complainant and the petitioner.

8. Mere issuance of a cheque, subsequently, dishonoured does not constitute an offence under section 489-F, P.P.C. if the other essential ingredients qua the re-payment of loan or for discharging any lawful obligation do not exist.

9. The offence with which the petitioner is charged does not fall within the prohibitory clause of section 497, Cr.P.C. The cheque is already in the custody of the Investigating Officer and nothing is to be recovered from the accused-petitioner in the backdrop of massive litigation between the parties. The probability of presence of malice or ulterior motive on the part of the complainant cannot be ruled out. There are many unanswered questions of facts and law pertaining to the alleged commission of offence which can only be resolved during the course of the trial after the evidence of the parties is recorded by the learned trial Court. The petitioner has been joining the investigation and has fully explained his position, which indicates that there is no need for any further investigation. The cheque in issue has neither been issued for repayment of loan nor for fulfilment of an obligation. The cheque issued by the I(petitioner was required to be presented on the counter of the Bank for encashment only after the afore-mentioned funds were credited to the drawee account. The haste shown by the complainant has placed the matter one step short of fulfilment of the basic ingredients of section 489-F, P.P.C.

10. For the foregoing reasons, I admit the petitioner to bail before arrest and confirm the ad-interim pre-arrest bail allowed to the petitioner on 1-4-2010 subject to his furnishing bail bonds in the sum of Rs.1,00,000 to the satisfaction of learned trial Court. A.R.K./G-36/L Petition accepted.