2008 PLP 611 (MLD)

TASSADUQ HUSSAIN JILLANI, J

Petitioner is a complainant in the case registered vide F.I.R. No.105, dated 6-3-2004 under section 489-F, P.S. Ghalib Market Lahore wherein the prosecution story is that respondent Arif Masood gave three cheques which are mentioned in the F.I.R. with a total amount of over Rs.10,00,000 which were dishonoured. The learned Addl. Sessions Judge Lahore granted him pre-arrest bail on the ground that a learned Judge of this Court had declared section 489-F, P.P.C. (W.P. No.3177-B of 2003) to be a bailable offence.

2. Learned counsel for the petitioner in support of this petition has made following submissions:-- (i) that the extraordinary action of pre-arrest bail could not be granted to the respondent unless there was mala fide apparent on record, (ii) that the only ground which found favour with the learned Court to grant the respondent bail was that section 489-F, P.P.C. is a bailable offence which is not correct; (iii) that the issuance of cheque is not being denied by the respondent and his only plea is that his cheque book was stolen with certain signed blank cheques; (iv) in reply learned counsel for the respondent's contention that F.I.R. No.172, dated 13-3-2004 under section 489-F P.S. Iqbal Town was registered against the petitioner. Learned counsel submitted that in the said F.I.R. the cheque was not issued by the petitioner and even otherwise as per his instructions. the case has been cancelled. He further submitted that the question of considering the merits the respondent's bail application would not be relevant at this stage because the learned Addl. Sessions Judge granted him bail merely on the ground that section 489-F, P.P.C. was bailable without touching the merits.

3. Learned counsel for the respondent defended the impugned order on the ground as under:-- (i) that the mala fides of the petitioner/complainant is apparent inasmuch as a case was registered on the statement of respon dent accused against the petitioner complainant vide F.I.R. No.172, dated 13-3-2004 under section 489-F, P.P.C. P.S. Iqbal Town; (ii) that respondent accused had lodged a report with the police about a theft of his cheque; (iii) that the civil suit qua the same cheques is pending decision before the civil Court. He lastly submitted that the considerations for the grant and for the cancellation of bail are different and unless there are tenable grounds available qua the cancellation of bail, the bail cannot be cancelled.

4. Having argued the case at some length, on the Court query both the learned counsel agreed that in all propriety that it would be fitness of things if the mater is remanded back to the same learned Judge who granted bail to decide the matter afresh. Since admittedly the offence was not bailable but in the meanwhile the investigation is complete and the challan has been submitted and the learned Addl. Sessions Judge while granting bail did not touch the merits of the respective pleas of the parties.

5. The stand taken by both the learned counsel is reasonable. In view of the above the order, dated 2-4-2004 granting bail to the respondent is set aside the bail application of the respondent shall be deemed to be pending before him and the same shall be decided afresh within thirty days. Parties to appear before the said Judge on 30-7-2004. H.B.T./M-666/L Order accordingly.