2023 PLP 33 (YLRN)

AFTAB AHMED GORAR, J.

The applicant, booked in FIR No. 26/ 2019 under section 489-F, P.P.C. registered with Police Station Bahadurabad, Karachi, was admitted to pre-arrest bail vide order dated 20.10.2021 and today the matter is fixed for confirmation of said pre-arrest bail or otherwise.

2. I have heard the learned counsel for the parties and perused the record.

3. Learned counsel for the applicant while reiterated the grounds mentioned in the memo. of bail application submitted that the dispute is purely of civil nature and the complainant with mala fide intention has lodged the FIR. She further submitted that the applicant is regularly appearing before the trial court as well as this court and not misused the concession of bail hence she prayed that interim pre-arrest bail granted to the applicant may be confirmed.

4. Learned Additional Prosecutor General Sindh opposed the confirmation of bail on the ground that the applicant has dishonestly issued the cheques in question knowing that no sufficient funds are available in his account and the issuing cheques as security is concocted story. She contended that there is sufficient material available with the prosecution which connects the applicant with the commission of alleged offence hence she prayed that bail application may be dismissed.

5. Tentative assessment of the record reflects that there is business relations between the applicant and complainant and in this regard the applicant has given cheque for business obligations to the complainant, which on presentation before the concerned bank, were dishonoured. Being account holder the applicant was in full knowledge that how much amount is lying in the account. It may be advantageous to mention here that to constitute an offence under section 489-F, P.P.C., the following ingredients have to be there: (i) Cheque issued with dishonest intention. (ii) Towards repayment of a loan or fulfillment of an obligation and (iii) The cheque is dishonoured on presentation.

6. In the present case, the cheque was issued by the applicant for fulfillment of business obligations with the knowledge that sufficient amount is not available in the account to honour the cheques and thus there was prima facie the element of dishonesty on the part of the applicant and that the cheques were dishonoured at the bank's counter are now part of the record of the case. Thus on all fours, the provisions of section 489-F, P.P.C. are squarely attracted in the present case. Moreover, the complainant cannot be bound down to seek his remedy by approaching the civil court through a recovery suit when there is no legal embargo on him not to press into service the penal provisions against the delinquent through the registration of an FIR.

7. It may not be out of place to mention here that the issuance of cheques which are in turn dishonoured has taken our society by storm so much so that such instrument is looked upon by the beneficiary with a degree of doubt and skepticism till it is honoured by the concerned bank. Such practice has also eroded the mutual trust of the general public and there are instances when people shy away from accepting cheques even from trustworthy persons. Moreover, no one is supposed to commit the financial murder of another member of the society. Even otherwise, it is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. In this respect reliance is being placed on the cases of Saleh Muhammad v. The State (PLD 1986 Supreme Court 211) and The State v. Zubair and 4 others (PLD 1986 Supreme Court 163).

8. Apart from the above, the record also reflects that conduct of applicant was not good as he was not appearing before the court and had sought adjournments on one or the other pretext. The bail applications earlier filed by the applicant i.e. Crl. Bail Applications Nos. 74 and 1772 of 2021 were dismissed due to appearance of the applicant. In the case of Muhammad Jahangir Khan and others v. The State and others reported in 2020 SCMR 1270, the Hon'ble Supreme Court of Pakistan has held that "the impugned order whereby pre-arrest bail petition of accused persons was dismissed showed that case had been called repeatedly but neither the accused person nor their counsel turned up before the High Court, despite it being a pre-arrest bail wherein personal appearance of the accused persons was mandatory, in such circumstances, the accused persons were not entitled to the extra ordinary concession of pre-arrest bail."

9. The applicant has failed to show a single mala fide on the part of complainant / prosecution to falsely implicate him in the case and there appear no reasonable ground to believe that he was not guilty of the offence alleged against him. Thus taking a tentative assessment of the available record, the applicant being prima facie linked with the commission of the offence is held disentitled to the concession of bail. Resultantly, the interim pre-arrest bail granted to the applicant vide order dated 20.10.2021 is recalled and the Bail Application is dismissed. The applicant is present in court he is taken into custody and remanded to Central Jail, Karachi.

10. The above bail order has been passed by me in the format prescribed by the Honorable Supreme Court in the case of Nazir Ahmed v. The State reported in PLD 2014 SC 241, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as complainant.

11. Before parting with this order, it is directed that any observations recorded in this order, being purely tentative in nature, should in no way prejudice the proceedings before the learned trial Court where the case be decided on its own merits. SA/L-1/Sindh Bail recalled.