2019 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Applicants/accused are present on interim pre-arrest bail granted to them by this Court vide Order dated 29.01.2019, in FIR No.223 of 2018 registered at Police Station Chakiwara under sections 489-F, 506, 34, P.P.C. Today this bail application is fixed for confirmation or otherwise.

2. The allegation against the applicant/accused are that they allegedly issued four cheques amounting to Rs.600,000/- (Rupees Six Lac Only) to the complainant on various time for encashment in Askari Bank, Fish Harbour Branch, Karachi and when these cheques were presented before the concerned Bank for encashment, the same were dishonored.

3. Learned counsel for the applicants/ accused contends that there are business transactions and dispute of amount between the complainant and the applicants/accused is of a civil nature but the complainant malafidely involved the applicants/accused in this criminal case. He further contends that FIR has been lodged with delay of 01 month and 24 days for which no plausible explanation has been given by the complainant in the FIR. He next contends that the investigation has been completed and the case has been challaned before the competent Court of law, where the applicants/accused is facing trial. He further contends that offence in which the present applicants/accused are booked does not fall within the prohibitory clause of section 497, Cr.P.C. and the question of dishonest issuance of cheques and its dishonoring could also not be determined at this stage as the same requires evidence, which was only possible during trial as such the case of applicant/accused requires further probe.

4. Learned Addl: PG assisted by the counsel for complainant has opposed this bail application on the ground that the applicants/accused are nominated in the FIR with specific allegation that on the relevant date and time, applicant/accused had issued the cheques to the complainant party and when the same were presented before the concerned bank, the same were dishonored, therefore, according to him, the applicants/accused are involved in the case of cheating and forgery.

5. I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me. So far as the question of mala fide is concerned, there is no cavil to the proposition addressed by the learned counsel for the complainant but the fact remains that after the incorporation of section 489-F, P.P.C. the situation with regard to bail before arrest in case involving section 489-F, P.P.C. appears to have changed. Usually, the question of mala fide is raised where the accused in the garb of bail before arrest wants to avoid investigation and also want to avoid recovery but in the instant case there is no question of recovery of cheque in dispute as the same is already with the complainant, therefore, just for the purpose of sending the accused to jail without any further investigation the bail before arrest cannot be refused when no further investigation/probe is to be made and the challan already stands submitted with the trial Court. Further, it would not be out of place to mention here that the object of section 489-F, P.P.C. is not to effect recovery of amount under the cheque and for that matter the complainant has always to approach the Court of competent jurisdiction. The question of dishonest issuance of cheque and dishonest dishonor can also not be determined as the same require evidence which is only possible during trial. And, lastly although the offence under section 489- F, P.P.C., is non-bailable yet this Court cannot ignore the fact that the offence also does not fall within the ambit of prohibitory clause and in the absence of exceptional circumstances the bail before arrest can even be claimed as of right in the light of the law declared by the Honourable Supreme Court in Tariq Bashir v. The State PLD 1995 SC 34.

6. In view of the above, applicants/accused have made out a case for confirmation of bail. I, accordingly allow this bail application and confirm the interim order already extended in favour of the applicants/accused on same terms and conditions with direction to the applicants/accused to appear before the trial Court on each and every date of hearing to face the trial.

7. Needless to mention here that the observation, if any, made in this order is tentative in nature and shall not effect the merits of the case. It is alleged that case is of cheating with the complainant, therefore, trial Court is directed to decide the case as early as possible preferably within the period of three (3) months. It is made clear that no unnecessary adjournments shall be granted to either party, in case if the applicants/accused misuses the bail, then trial Court would be competent to cancel the bail of the applicants/accused without making any reference to this Court but as per law. MQ/A-103/Sindh Bail confirmed.