P L D 2013 Islamabad 39 (PLP)

MUHAMMAD ANWAR KHAN KASI, J.

This petition under section 497(5) of Cr.P.C. is preferred by one Badshah Jan s/o Khawas Noor petitioner/complainant, seeking cancellation of post-arrest bail granted to respondent No.1/accused Allah Ditta, by learned Addl. Sessions Judge, Islamabad vide order dated 6-4-2012 in connection with F.I.R. No.58, dated 16-2-2012, under section 489-F, P.P.C. of Police Station Margalla Islamabad.

2. It is submitted by the learned counsel that respondent No.1 is specifically nominated in the F.I.R. with the role of issuing a cheque for Rs.14,80,000/- with mala fide intention to defraud the petitioner because it was dishonoured on presentation.

3. It is next submitted that the bail order is not a speaking order, the parties were not doing any business transaction and the amount was given as loan, which was returnable and in token of that post-dated cheque was issued.

4. It is further submitted that the affidavits of witnesses Gul Taj Ali and Maliq Khan establish the fact that the amount was loaned by the respondent No.1, against the cheque for Rs.1,480,000/-.

5. Learned Deputy Attorney-General, on the other hand, supported the bail granting order by maintaining that as a matter of fact, the amount in question, in stricto sensu, was not loan rather the same was "Qarz-e-Hasna", returnable by the respondent No.1, on his acquisitioning the ability to repay the debt amount, therefore, there was no mala fide intention for the issuance of cheque.

6. According to the F.I.R., the complainant had given Rs.1,480,000/-as "Qarz-e-Hasna" to the respondent No.1, (Allah Ditta Sethi Wahi) against cheque No.A-2528081 of JS Bank, F-8 Markaz Islamabad, which on presentation was dishonoured.

7. As per Ground-b of the petition there was an agreement between the parties dated 27-9-2010 and affidavits of arbitrators/witnesses clearly prove that the amount was taken by the respondent No.1 as loan and there was no business transaction between the petitioner and respondent No.1 in any manner. The contents of F.I.R. clearly indicates that the petitioner advanced Rs.14,80,000/- as "Qarz-e-Hasna" to respondent No.1. It is, therefore, an admitted fact that the loan was of a special kind.

8. According to Tafheem-ul-Quar'an, Volume I by Maulana Abu-ul-Ala Modoodi, Qarz-e-Hasna is that kind of loan, which is given for the purpose of helping another with an object that it should be payable only when the borrower is in a position to pay. Guidance in this respect may be solicited from case-law "Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 MLD l351 and Dr. M. Aslam Khaki v. Syed Muhammad Hussain and 2 others PLD 2000 SC 255 wherein it was held that Qarz-e-Hasna is that kind of loan, given on compassionate ground, free from interest/mark-up or service charges and re-payable if and when the borrower is able to pay.

9. With above background, in my view, where the disputed amount is alleged to have been advanced as Qarz-e-Hasna, no criminal liability thus could be constituted.

10. All the allegations and facts shall be determined at the trial stage after appreciation of evidence. At present, the matter falls under the scope of further inquiry, where the maximum punishment is three years and, therefore, the bail granting order does not seem to be suffering from any illegality.

11. In view of above, I find no force in this petition which is hereby dismissed but with observation that above assessment shall have no bearing upon the merits of the case. MWA/43-ISL. Bail granted.