2018 PLP 221 (YLRN)

AFTAB AHMED GORAR, J.

Applicant Iqbal Alam Khan son of Dildar Khan sought for post arrest bail in crime No. 537 of 2016, Police Station Sharah-e-Faisal Karachi, registered under Section 489-F Pakistan Penal Code.

2. The sum and substance as disclosed in the First Information Report are that complainant being owner of Plot No.A/219-A, Block No.3, Gulistan-e-Jauhar, Karachi admeasuring 250 Sq.Yds., sold it to Iqbal Alam Khan son of Dilawar Khan against the sale consideration of Rs.1,40,00,000/- through sale agreement duly executed between them, by which applicant issued the following Cheques to the satisfaction of sale. Sr.No. Cheque Number Dated Amount 1 10239450 22-07-2016 Rs.500,000/- 2 10239451 23-07-2016 Rs.500,000/- 3 10239454 24-07-2016 Rs.500,000/- 4 1023955 (sic) 28-07-2016 Rs.500,000/- All above mentioned cheques were drawn on Bank Al-Habib. On presentation thereof, same retuned dishonored by the banker of complainant, however; said Cheques were dishonored in between 25-07-2016 to 29-07-2016; hence this FIR.

3. Mr. S. Hasan Imam, advocate representing the applicant contended that applicant is innocent and has been falsely implicated by the complainant; per learned counsel as per condition precedent in the sale agreement if cheques were dishonoured the deal should be cancelled; per learned counsel after execution of sale agreement applicant came to know that said plot belongs to "china cutting" and is not included in master plan of Gulistan-e-Johar; per learned counsel the dispute is of pure civil nature whereby civil litigation is pending adjudication before this Court bearing Suit No. 217 of 2017; per learned counsel applicant after entering into sale agreement informed complainant about the sale of said plot; per learned counsel the present crime is not punishable within ten years and does not fall within the domain of prohibitory clause of section 497, Cr.P.C.; per learned counsel investigation has been completed, challan has been submitted and applicant is no more required for further investigation purpose; per learned counsel the law prescribed that bail is better than jail. Learned counsel for the applicant has relied upon 2011 SCMR 1708, 2017 PCr.LJ Note 34 [Peshawar], 2013 PCr.LJ 1591 [Lahore], 2017 YLR Note 47, 2012 YLR 930 [Islamabad], 2012 YLR 1828 [Islamabad], 2010 YLR 2973 [Lahore], 2012 YLR 722 High Court [AJ&K] and 2013 YLR 374 [Lahore].

4. Mr. Zubair Ahmed Abro, advocate, representing the complainant contended that the allied in the shape of sale agreement is well admitted in between complainant and the applicant; per learned counsel applicant has knowingly issued cheques in favour of the complainant with sole aim and idea to defraud and cheat complainant issuing bogus cheques; per learned counsel the complainant has been deprived of huge amounts; per learned counsel this Court has earlier dismissed the ad interim pre arrest bail plea of the applicant vide order dated 06-12-2017 therefore applicant did not deserve concession of post arrest bail; per learned counsel the post arrest bail plea of the applicant may be declined. Learned counsel has relied upon 2013 SCMR 651[c] relevant page 53 and 2013 PCr.LJ 688(A)(B) relevant pages 690 and 691.

5. Mr. Muntazir Mehdi Memon, Deputy Prosecutor General Sindh, opt the arguments advanced by the learned counsel for the complainant; learned DPG further contended that this Court had earlier declined confirmation of ad interim pre arrest bail, therefore applicant is not entitled for concession of post arrest bail; per learned DPG there is material available with the prosecution which prima facie connect the applicant with the commission of alleged offence; per learned DPG the post arrest bail plea of the applicant may be declined. Learned DPG has relied upon 2013 SCMR 51 and 2013 PCr.LJ 688

6. Heard and record perused.

7. Apparently applicant issued Cheques in favour of complainant likewise to cheat and defraud complainant in respect of sale of Plot No.A/219-A, Block No.3, Gulistan-e-Jauhar, Karachi admeasuring 250 Sq.Yds.; as to the contention of learned counsel that aforesaid plot is non-existence as per map issued to by the Deputy Director (Sch-36) MPD-SBCA as per cover letter dated 14.12.2017; prior to the issuance of map applicant purchased disputed plot and knowingly issued dishonored cheques in favour of the complainant, however; said map was not in the field when transaction of said plot was worked out viz: execution of sale agreement; it has by now been produced before the Court; therefore the veracity of said map had become dubious and is questionable even otherwise said map could not fatal to the merits of the case in hand at all. Needless to mention here time and again the spirit of law as is envisaged under Section 489-F, P.P.C. being cognizable offence read as follows:-- [489-F. Dishonestly issuing a cheque,--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank as at fault in not honouring the cheque.]

8. Be that as it may, the earlier transaction in between applicant and complainant is well established and has foundation as has been surfaced from the record; the dishonesty of the applicant has been proved, the question would be arisen how; because applicant after purchase from complainant sold out disputed plot to some other buyer of his choice namely Mr. Muhammad Irfan Malik against sale consideration for an amount of Rs.1,55,00,000/- and received rupees one Crore thereafter handed over possession thereof to Muhammad Irfan Malik as alleged whom had also instituted Civil Suit bearing No.2248 of 2017 seeking Specific Performance, requiring Declaration, Permanent Injunction as well as claiming Damages of Rs.2,00,00,000 arraying applicant, complainant and KDA as ["the respondents"] and is pending adjudication before this Court therefore applicant had belied the truth by self, therefore, under these circumstances I am not inclined to grant post arrest bail to the applicant. The case law referred by the learned counsel for the applicant are not helpful to the applicant at this stage because at bail stage only tentative assessment is to be looked into rather to go and award deeper appreciation.

9. As discussed supra, I find no force in the captioned bail application therefore the instant criminal bail application is dismissed. HBT/I-14/Sindh Bail refused.