2004 PLP 2251 (YLR)

Petitioner Rashid Maqbool through the instant petition has sought for cancellation of post-arrest bail extended to respondent No.1 by the learned Additional Sessions Judge, Lahore vide his order dated 23-12-2003 in case F.I.R. No.367 under section 489-F, P.P.C. registered with Police Station Garden Town, Lahore on 18-11-2003.

2. Briefly the facts relevant for the disposal of the instant petition are that the said case has been registered on the written application of the petitioner. The facts as contained in the F.I.R. stand incorporated in Criminal Miscellaneous No.71-B of 2004, titled Muhammad Iqbal v. The State. I, therefore, repeat not the same here.

3. Respondent No.1 was arrested in this case. He had applied for post-arrest bail before the learned Sessions Court, Lahore. He was extended such relief by the learned Additional Sessions Judge, Lahore vide his afore referred order.

4. The petitioner has sought the cancellation of the bail extended to respondent No.1 on the ground that the offence under section 489-F, P.P.C. was specifically inserted in the Statute and so it has it's own import and the same, thus could .not be taken in routine; that bail to an accused of such offence may not be granted mechanically or lightly unless he discharges the onus of issuance of cheque on him; and that respondent No.1 has defrauded the petitioner and deprived him of his huge amount and so was not entitled to the concession of bail.

5. I have carefully considered the above submissions with the help of available record.

6. The allegation against respondent No. 1 is that he obtained Rs.15,00,000 from the petitioner for investment in his business with the name and style of Qatar Lubricants but he thereafter did not pay him any amount and rather misappropriated his entire amount.

7. Respondent No.1 was granted bail on the ground that he is not a previous convict and the offence against him does not fall within the prohibitory clause of section 497, Cr.P.C. and the grant of bail in such-like cases is a rule and refusal an exception.

8. This was in accordance with the principles enunciated by the Apex Court governing the question of grant or otherwise of bail, in the cases of the like nature.

9. There is no denying the fact that the offence alleged against him falls not within the prohibitory clause of section 497(1), Cr.P.C. He has remained in the judicial lock up. It has also not been denied by the petitioner's side that he is a previous non-convict.

10. The Apex Court in the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, has held that grant of bail in offences not falling within the prohibitory clause of section 497(1), Cr.P.C. is a rule and refusal an exception.

11. There has been found no exceptional circumstance to warrant refusal of bail to respondent No.1.

12. No doubt the offence under section 489-F, P.P.C. was inserted in the Statute with a particular design of providing penalty to the accused of issuance bogus cheque. The question of grant of bail or otherwise to an accused of such an' offence, however, is to be considered in the light of the general principles governing the same and not on any other consideration.

13. The question of discharge of onus, if any upon accused of such an offence will arise at trial stage and not at bail stage. This will be when accused will be put to explain his position vis- -vis the incriminating evidence, if brought on record against him.

14. Hence, I am of the considered view that the learned Additional Sessions Judge has not at all erred in the exercise of his discretion in the matter of grant of bail to respondent No.1.

15. The petition, therefore, is without force and the same is dismissed in limine. H.B.T./R-10/L Petition dismissed.