2013 PLP 566 (YLR)

SADIQ HUSSAIN BHATTI, J.

Applicant, Ghulam Murtaza, has moved this petition for bail in a case registered against him under sections 420, 489-F/506, P.P.C. at Police Station Nabi Bux on 29-6-2012. Brief facts of the case are that the Complainant, Shaukat Iqbal, lodged an F.I.R. No.129 of 2012 at Police Station Nabi Bux on 29-6-2012 stating therein that he is a businessman and his three employees, namely, Shamim Ahmed, Muhammad Wasim and Ghulam Rasool alias Gama have misappropriated a sum of Rs.60,00,

000. The said employees gave cheques to the complainant in the sum of Rs.10,00,000 which were dishonoured and the complainant lodged F.I.R. against them in the concerned police station. There-after, present accused/applicant, Ghulam Murtaza, intervened in the matter and he undertook to pay him Rs.10,00,000 in three instalments and issued three cheques. He also prepared a mutual agreement about settlement of the dispute on which the complainant filed an affidavit in the Court and the accused Shamim was released on bail on the basis of such affidavit. The complainant deposited Cheque No.5237734 dated 3-5-2012 for the sum of Rs.315,000 in his account but the same was dishonoured due to incorrect signature and the payment was also stopped by the said Ghulam Murtaza. Accordingly, the complainant lodged the above F.I.R. against him at Police Station Nabi Bux. The accused/applicant was arrested on 5-7-2012 and since then he is in judicial custody. Initially he submitted bail application before the learned Judicial Magistrate who, after hearing the parties, dismissed the same vide order dated 4-7-2012. The appellant challenged that order of dismissal before the II Additional Sessions Judge, Karachi South, who also dismissed the same vide order dated 23-7-2012. Hence this bail application. Learned counsel for the applicant/ accused has argued that the applicant is innocent and has been falsely implicated in this case due to mala fide intention and ulterior motives of the complainant. He further argued that F.I.R. was lodged after a delay of 29 days which causes serious doubts in prosecution's case. The allegations levelled in the F.I.R. against the applicant/accuses is merely on the basis of difference in the signatures on the said cheques and this is not a case of dishonour of cheque. Learned counsel further submitted that complainant, besides the F.I.R., has also filed Suit No.17 of 2012 against co-accused Shamim, whose name is also mentioned in the F.I.R. to be one of his employees and that the complainant has concealed material facts that the complainant and accused/applicant are 50% partners in a registered firm under the name and style of "Pak Batteries Traders". The learned counsel also submitted that agreement dated 11-4-2012 between the parties is an incomplete agreement which does not bear the signatures of the co-accused Shamim. He lastly concluded that the case of the accused does not fall within the prohibitory clause of section 497, Cr.P.C. and submitted that the applicant/ accused is entitled to bail on this sole ground. In support of his contentions, the learned counsel relied on the following cases:-- (1) 2011 SCMR 1708, (2) 2010 YLR 2685, (3) 2006 YLR 1852, (4) 2007 YLR 1280, (5) 2010 YLR 311, (6) 2010 YLR 332, (7) 2006 PCr.LJ 522, (8) 2007 PCr.LJ 100, (9) PLD 1995 SC 34, (10) 2010 MLD 1063, (11) 2002 MLD 184, (12) 2011 SCMR 1047, (13) 1996 SCMR 1132, and (14) 2007 MLD

926. On the other hand, learned counsel for the complainant has vehemently opposed the grant of bail to the accused/applicant on the ground that the dispute was between accused Shamim and the complainant but the accused/applicant Ghulam Murtaza himself intervened in the matter and took guarantee for payment of Rs.10,00,000 to the complainant in three instalments. He also prepared a mutual agreement and gave it to the complainant. On the basis of such assurance and the mutual agreement, accused Shamim, who was already in custody in this case, was released on bail. But, after his release on the basis of the affidavit filed by the complainant in the Court pursuant to the mutual agreement, co-accused Shamim backed out and did not sign the mutual agreement. He further contended that the cheque was not given by the applicant/ accused as surety but it is clearly depicted that it was given as guarantee and dishonouring of the cheque on account of difference in signature and stop payment instructions by the accused/applicant clearly demonstrates the dishonest intention of the applicant/accused right from the beginning. Learned counsel further contended that the suit for recovery filed by the complainant against co-accused Shamim has no concern with the present applicant/accused. In support of his contentions, the learned counsel relied on the following case-law:-- (1) Amir Hussain v. State (2011 PCr.LJ 265), (2) Riaz Tahir Naqvi v. State (2012 MLD 232), (3) Muhammad Khan v. State (2011 MLD 1288), (4) Wajid Aman v. State (2011 MLD 799), and (5) Muhammad Nawaz v. State (2011 MLD 299). Learned A.P.-G. appearing for the State also opposed the grant of bail to the accused/applicant and adopted the arguments of the learned counsel for the complainant. I have heard the arguments of the learned counsel for the parties and perused the case law cited before me. The main point in this case is the role of the applicant/accused. The complainant lodged an F.I.R. against his employees Shamim and others for their misappropriation of funds and said Shamim was arrested. At this juncture, the applicant approached the complainant and assured him to reimburse to him Rs.10,00,000 in three instalments and issued him three cheques under an agreement dated 11-4-2012. It was on the basis of this assurance that the applicant filed an affidavit in the Court on the basis whereof the accused Shamim was released on bail. However, when Shamim was released, he backed out and did not sign the agreement. The applicant/accused is not denying the factual position of execution of the agreement dated 11-4-2012 and issuance of cheques to the complainant. His sole grievance is that since the second party, i.e. co-accused Shamim, did not sign the agreement hence the agreement is incomplete and not binding on him. This is really a strange proposition. The role of the accused/applicant was that of a guarantor and by way of signing the agreement he is liable to discharge his liabilities under the said agreement. All these things clearly demonstrate the dishonest intention of the accused/applicant to deceive the complainant. In the case reported as Abdul Ghaffar v. The State (2010 YLR 2685), relied upon by the learned counsel for the applicant/accused, bail was granted to the applicant in that case on the sole ground that only cheque was recovered from him which allegedly bounced for which a separate case under section 489-F, P.P.C. could be registered against the accused by the complainant. In the case reported as Riaz Jaffer v. Nadeem Dar (2011 SCMR 1708) bail was granted to the accused on the ground that he was behind the bars for about eight months and the petitioner was a diabetic and was also patient of ulcer. Similarly, the other cases cited by the counsel for the accused/applicant are distinguishable on facts and are not relevant. In the case reported as Wajid Aman v. The State (2011 MLD 799), the High Court declined bail to the accused by holding that though the offence was punishable with R.I. for three years but keeping in view the conduct of the accused and the nature of the offence, the accused was not entitled to concession of bail. In the case of Muhammad Khan v. The State (2011 MLD 1288), bail was declined to the applicant for dishonestly issuing a cheque and cheating. The High Court observed that issuance of false cheques is increasing day by day and the people were suffering difficulties and agonies and there business due to issuance of false cheques. Such tendencies should be dealt with iron hands. Thus, the case relied upon by the learned counsel for the complainant supports his contentions. In view of the foregoing reasons and the case law cited at the Bar, I am of the considered view that present application merits no consideration and the same is hereby dismissed. However, before parting with the order learned trial Court is directed to examine the material witnesses within two months and thereafter the learned counsel for the applicant would be at liberty to move a fresh bail application, if so advised. The trial Court is directed to submit progress report to this court on monthly basis through MIT. MWA/G-33/K Bail refused.