2021 P Cr (PLP)

SYED MUHAMMAD ATTIQUE SHAH, J.

Petitioners, Shah Zain, Ahmad Hassan and Farhan Mughal, seek pre-arrest bail in case FIR No.340 dated 20.02.2021 under sections 489- F/406, P.P.C. of Police Station City, District Mardan.

2. Jamil-ur-Rahman, the complainant moved written application to the SHO concerned for taking legal action against the accused by alleging that he had a mobile business with the accused/petitioners; but, was unaware of their being thieves as, by getting the mobiles worth Rs.83,65,000/- they disappeared; subsequently, they handed over two cheques to him by informing him that the said mobiles were sold out to Muhammad Ashfaq and in consideration thereto, cheques in question were given to him. On prmentation, the ibid cheques were bounced. being blocked by the drawer, hence, instant case.

3. Heard. Record gone through.

4. Indeed, grant of pre-arrest bail is an exceptional and extra-ordinary relief and as such restricted to the cases; which are the result of trumped-up charges. In order to get the relief, petitioner has to establish that the registration of case is the outcome of mala fide and ulterior motives, and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation. Certainly, the relief of pre-arrest bail is a shield to protect innocent persons qua highhandedness of individuals or authorities through false, motivated and malicious prosecution. Therefore, while granting pre-arrest bail; apart from the element of mala fide and ulterior motives, the merits of case could also be touched upon 2021 SCMR 130 Khair Muhammad and another v. The State through P.G. Punjab and another, PLD 1989 SC 347 Meeran Bux v. The State and another.

5. Coming to the facts of case in hand, perusal of the record suggests that though the complainant has alleged a huge business transaction with the accused/petitioners; however, the record is silent in this respect, as nothing as such is available on record; which could support the contention of the complainant. The accused/petitioners are mainly charged under section 489-F, P.P.C.; therefore, for sake of convenience, the same is reproduced below:- "489-F. Dishonestly issuing a cheque.

Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment 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 was at fault in not honouring the cheque."

6. The ibid provision has laid main emphasis on the dishonoring of a cheque, upon its presentation, which was issued towards repayment of a loan or fulfillment of an obligation. In the case in hand, the cheques in question have admittedly been issued by the co-accused Muhammad Ashfaq; who has already been released by this Court, while accepting his post arrest bail application. The record further suggests that the cheques in question were stopped/blocked by the said Muhammad Ashfaq for the reason that subsequently, cash amount was paid to the accused Hassan; however, in turn, he failed to return the cheques and; in this regard, a statement of one Atif Awan was also recorded under section 164, Cr.P.C. on 08.3.2021. Albeit, perusal of the cheques in question shows that the same had been issued in the name of the complainant. Thus, in the given circumstances, there is no direct or indirect evidence available on the record of the case, which could prima facie connect the accused/petitioners with the commission of offence. The involvement of the accused/petitioners in the circumstances is not free from mala fide and; ulterior motives. As far as, applicability of section 406, P.P.C. is concerned, the same would be seen by the learned lower Court at the time of trial. Further, there is no criminal history of the involvement of the accused/petitioners in such like offences. The investigation is complete and; the accused/petitioners are no more required for further interrogation.

7. So far as, the contention of learned counsel representing the complainant regarding the jurisdiction of this Court, while directly entertaining bail before arrest application is concerned, suffice it to say that this Court shares concurrent jurisdiction with the learned trial Court, while dealing with the matter of bail before arrest under section 498, Cr.P.C. Albeit, propriety demands that the learned trial Court be approached at the first instance. However, in an appropriate case, where there is a threat to life or an element of undue harassment and humiliation at the hands of local police or complainant; then, High Court could be approached directly. 2004 SCMR 1167 "Rais Wazir Ahmad v. The State", 1991 SCMR 322 "The State v. Malik Mukhtar Ahmad Awan". In the case in hand the accused/petitioners have shown their apprehension of harassment and humiliation at the hands of complainant, who happens to be the brother of a practicing lawyer. Though no such plea has been taken by them in their application; however, at the time of arguments they vehemently agitated the same at the bar. Therefore, in view of its peculiar facts and circumstances, the instant petition is allowed, ad-interim bail already granted to the accused/petitioners is hereby confirmed on their existing bail bonds.

8. The ibid observations are the tentative assessment of the material available on the record of the case, which shall not influence the mind of the learned Trial Court in any manner at the time of trial. SA/128/P Pre-arrest bail granted.