2008 PLP 1030 (MLD)

KAZIM ALI MALIK, J.

Haji Ahmad, petitioner/complainant got registered a case F.I.R. No. 227, dated 2-7-2008 under section 489-F, P.P.C. at Police Station City Alipur, District Muzaffar Garh with an allegation that Raheem Bakhsh, accused, had been receiving different amounts from the complainant's son Abdul Razzaq residing abroad through electronic transfer on his behalf; that Raheem Bakhsh withheld and misappropriated the money which he had received through such electronic transfer, upon which the complainant made an application and sensing some action Raheem Bakhsh issued three cheques of different amounts in favour of the complainant, which on their presentation before National Bank of Pakistan, Alipur Branch had been dishonoured.

2. Apprehending arrest in the above said case Raheem Bakhsh, accused, made an application for pre-arrest bail before the learned Additional Sessions Judge, Alipur, which was allowed vide order, dated 27-7-2007. The complainant has sought cancellation of pre-arrest bail of Raheem Bakhsh, accused, through this application under section 497(5), Cr.P.C.

3. The following reasons weighed with the learned Additional Sessions Judge while allowing anticipatory bail to the accused: (i) According to the medical certificate the petitioner was heart patient and an old man. (ii) Mala fide behind issuance of disputed cheques would be determined after recording of evidence. (iii) The offence does not fall within the prohibitory clause of section 497, Cr.P.C. (iv) The person of accused was not required for recovery of cheques as the same were already with the complainant.

4. To start with I must say that pre-arrest bail is an extraordinary relief whereas the post-arrest bail is an ordinary relief. Considerations for pre-arrest bail and after arrest bail are altogether different. A good ground for post-arrest bail may be no ground for pre-arrest bail. It appears that the above said legal principles escaped notice of the learned Additional Sessions Judge, while granting extraordinary relief of anticipatory bail to Raheem Bakhsh, respondent/accused. During the course of arguments Raheem Bakhsh appeared in person. Apparently, he is neither extremely old nor in a bad state of health.

5. There is no dispute as to this that the respondent/accused issued cheques in dispute in favour of the complainant, which on their presentation before the concerned Branch of National Bank of Pakistan had been dishonoured. It was in the knowledge of the respondent/accused that he had no money in the Bank account and despite this he issued cheques in favour of the complainant. To my mind this was an evidence against the respondent/accused of his dishonest intention. While seeking pre-arrest bail it was duty of the respondent/accused to establish and prove mala fide on the part of the Investigating Agency or the complainant. The learned Additional Sessions Judge, was required to examine the plea of mala fide put forward by the respondent/accused after having made tentative assessment of the material laid before him and this exercise should not have been postponed till the inception of trial and recording of evidence.

6. It is true that the offence with which the respondent/accused stands charged does not fall within the prohibitory clause of section 497, Cr.P.C. but it was no ground for anticipatory bail. In bailable offences the accused can claim bail as a matter of right whereas in non-bailable offences the bail is a concession/grace/favour by the Court in the light of legal principles. The offence not falling under the prohibitory clause of section 497, Cr.P.C., did not provide a basis to allow extraordinary relief of anticipatory bail to the respondent/accused.

7. Another reason for grant of pre-arrest bail was that the accused was no more required for investigation purpose. Without fear of contradiction I would say that it was a good ground for post-arrest bail only.

8. The learned Additional Session Judge allowed anticipatory bail placing reliance on the case of Talib Hussain v. State (2007 PCr.LJ Lahore 1064). Here I would say that no hard and fast rule can be framed in this regard and it depends upon the facts of each and every case. In case Askari Leasing Limited v. Rana Muhammad Asif and another (2005 PCr.LJ 950) pre-arrest bail allowed to the accused had been recalled by this Court. In another case Liaqat Hussain v. State (2006 MLD Lahore 166) pre-arrest bail to the accused of an offence under section 489-F had been declined by this Court.

9. The learned counsel for respondent/accused has placed reliance on Muzaffar Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231), Suba Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66), Talib Hussain v. The State (2007 PCr.LJ 1064), Major Anwar ul Haq v. The State (PLD 2005 Lahore 607), Muhammad Ayub v. Rana Abdul Rehman and another (2006 YLR 1852), Qasim Khan v. Sharafat Khan and another (2003 YLR 2910) and Tariq Bashir and 5 others v. The State (PLD 1996 Supreme Court 34) and has contended that strong and exceptional grounds are required for cancellation of bail. With extreme respect at my command for the case-law relied upon by the learned counsel, I would say that the facts of precedent cases are altogether different from that of the case in hand. I am of the view that no ground for extraordinary relief of anticipatory bail was available to the respondent/accused and the learned Additional Sessions Judge treated the grounds for post-arrest bail as grounds for pre-arrest bail against recognized and established principles of law.

10. Raheem Bakhsh, respondent accused, named present during the course of arguments, but he slipped away at the time of pronouncement of order. This conduct rather misconduct on the part of the respondent/ accused has made himself disentitled to discretionary relief of bail.

11. For what has been stated above I allow this application and set aside the bail granting order of the learned Additional Sessions Judge. H.B.T./H-7/L Application allowed.