2014 P Cr (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

By filing instant criminal miscellaneous petition the petitioner Muhammad Ashraf seeks his release on post-arrest bail in case F.I.R. No.891, dated 17-10-2012, which was registered under section 489-F, P.P.C. with Police Station B- Division, Sheikhupura.

2. Akbar Ali, the complainant of the case, while lodging the crime report had asserted that he had paid Rs.70 lac to the petitioner as earnest money for the purchase of land, which sale was agreed by the petitioner. He further narrated that before the date of execution of the sale deed the petitioner had offered him Rs.23 Lac for repudiating the agreement of sale of the land and later on in this respect a cheque valuing Rs.93 lac was issued in his favour, which was dishonoured by the bank on its presentation for encashment.

3. Learned counsel for the petitioner has contended that the petitioner is an old person having the age of more than 60 years, infirm and suffering from acute cardio-vascular disease, who has been advised for surgery; that the matter in hand relates to sale of the land and in this respect the cheque issued by the petitioner was not for the purpose of liquidating any liability, rather it was a guarantee cheque and in this respect the complainant of the case has also filed a suit for specific performance against the petitioner seeking a decree of possession by performance of the agreement in question. He has argued that it is a case in which the sentence provided for the offence charged against the petitioner does not attract the prohibition contained in section 497, Cr.P.C. and that his detention in the jail prior to the establishment of the charges would be pre-trial punishment, which sentence has not been recommended by law. In these circumstances, learned counsel has prayed for the relief as contained in the bail petition.

4. The petition has been opposed vehemently by the learned Deputy Prosecutor-General, assisted by the learned counsel for the complainant, by making submission that this Court had already dismissed pre-arrest bail application of the petitioner vide order dated 2-1-2013, whereafter the petitioner approached the apex Court where an undertaking for deposit of the disputed amount was given by the petitioner for having the relief of confirmation of his ad-interim pre-arrest bail and that undertaking was not fulfilled due to which reason the bail application was withdrawn on 11-3-2013, therefore, in view of this undertaking the liability of huge amount has been admitted by the petitioner proving the commission of an offence by him. It is further argued that this Court had discussed all points raised today in order dated 2-1-2013 while dismissing pre-arrest bail application, therefore, those points, which had already been considered, cannot be agitated through the instant petition and the petitioner is estopped by his conduct in this respect. Learned counsel has also relied upon the cases of Karim Bakhsh v. The State (2000 SCMR 1405) and Muhammad Nawaz v. The State (1990 ALD 650) to support his submissions. Learned counsel while summing up has prayed for dismissal of the bail petition.

5. Parties heard and record perused.

6. Learned counsel for the complainant while opposing the request for grant of bail has relied upon the aforesaid cases, which have been examined minutely and it is found that both cases do not relate to the offence falling under section 489-F, P.P.C. The case of Muhammad Nawaz (supra) deals with the bail matter relating to the charge falling under offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereas the case of Karim Bakhsh (supra) pertains to murder case in which the bail application was filed before the apex Court by that petitioner. Both these cases are not helpful to the complainant of instant case.

7. The submission of the learned counsel that while dismissing the pre-arrest bail petition, this Court had dealt with all points relating to the merits of the case, therefore, now those points cannot be agitated or considered for deciding this petition, has no substance for the reason that while dismissing the pre-arrest bail petition this Court has mainly concentrated on the point of malice of the complainant for involving the petitioner in the case, which the petitioner had failed to pinpoint. It has been held by the apex Court in various precedent cases that the criteria for grant of post-arrest bail is totally different than the criterian of considering a petition for pre-arrest bail. It has been further observed by the august Supreme Court that in the cases falling under section 498, Cr.P.C. the main factor, which is to be considered by the Court is malice of the police or the complainant for falsely implicating a person in the case (2009 SCMR 427) whereas in the application filed under the provisions of section 497, Cr.P.C. it is to be seen whether any question or point involved in the case needs any further probe or inquiry and in case the answer is found in the affirmative then the bail is usually granted under section 497(2), Cr.P.C. This difference between two matters of pre-arrest bail and post-arrest bail is to be kept in mind and it cannot be said that the points raised in the pre-arrest bail application cannot be agitated in a post-arrest bail petition. Furthermore, after dismissal of an application for pre-arrest bail the culprit is supposed to join police investigations as his person is required for the purpose where he makes his version and produces evidence in defence and the investigating agency after dealing with the same draws an inference about the involvement of the person in the case or otherwise.

8. The next objection of the learned counsel for the complainant that the petitioner had given undertaking before the apex Court to deposit the disputed amount for having the relief of pre-arrest bail, which undertaking was not honoured thus the petitioner is not entitled for the concession of bail, is equally untenable submission for the reason that the petitioner although had given an undertaking for deposit of the disputed amount for having the relief of pre-arrest bail but due to non-deposit of said amount the relief of pre-arrest bail was not granted to him and the matter stood closed there with the withdrawal of the bail application, resulting into confirmation of dismissal of bail application by this Court which was done on 2-1-2013, thereafter, the petitioner was arrested by the police. This undertaking of the petitioner cannot always stand in his way for seeking his relief of bail, rather the post-arrest bail application is to be considered on its own merits as well as keeping in view law governing the subject, without being influenced by the undertaking given by the petitioner.

9. So far as the merits of case of the petitioner are concerned, it is evident from record that the parties had agreed to sell and purchase the land in dispute and in this respect Rs.70 lac were given by the complainant to the petitioner as earnest money. Since the petitioner was not willing to perform the terms of that agreement thus he had offered more money to the complainant in the form of Rs.23 lac and then he had issued a cheque in the total amount. This precise fact requires a probe to determine whether in fact the cheque in dispute was issued to re-pay consideration paid by the complainant to the petitioner or it was issued to secure the future interest of the complainant. This very fact is oozed out from the F.I.R. itself in which it is recorded that when the petitioner had insisted upon the cancellation of the agreement with the payment of Rs.23 lac, an extra amount, the complainant refused to annul the agreement and to receive that amount. Furthermore with the dismissal of the application for grant of pre-arrest bail the petitioner was arrested by the police and he is facing incarceration since 30-8-2013. His challan has been completed by the police and the same had been submitted in the court for further proceedings, so the person of the petitioner is not required for further investigations. The pendency of the civil suit filed by the complainant for having the decree for possession through specific performance of an agreement to sell also cannot be ignored lightly as in that suit the complainant is required to establish the repudiation of the agreement to sell allegedly made by the petitioner and offer of the petitioner for returning Rs.93 lac to the complainant, so the jurisdiction of civil court cannot be pre-empted at this stage by accepting the story narrated in the F.I.R. Needless to say that a person cannot be detained in the jail as a punishment and that the sentence of the offence charged against the petitioner does not fall within the prohibition as contained in section 497, Cr.P.C.

10. Keeping in view the afore-noted circumstances of this case, I found it a fit case for grant of bail, therefore, this petition is allowed and Muhammad Ashraf petitioner is admitted to bail on furnishing of bail bonds in the sum of Rs.50 lac (Rupees Five million only) with two sureties each in the like amount to the satisfaction of the learned trial Court. MWA/M-294/L Bail granted.