2007 P Cr (PLP)

M. BILAL KHAN, J.-- Muhammad Imran son of Sakhi Muhammad, who is the complainant in F.I.R. No.365 of 2006 dated 2-7-2006, registered with Police Station Basirpur, District Okara for an offence under section 489-F, P.P.C. has moved this petition under section 497(5), Cr.P.C. wherein it has been prayed that post-arrest bail allowed to Faraz Ahmed son of Muhammad Amin (respondent No.1) by Syed Khurshid Anwer Rizvi, the learned Additional Sessions Judge, Depalpur, District Okara vide order, dated 20'4-2006, may be cancelled.

2. The story as narrated by the petitioner/complainant in the aforesaid F.I.R. was that he was a resident of Rohela Road Hashimabad, Police Station Basirpur, District Okara and used to run a fertilizer shop; that Faraz Ahmad (respondent No.1) had purchased fertilizer worth Rs.1,90,000 from his shop and in order to pay the price thereof had issued cheque No.621492 dated 27-4-2006 for Rs.1,90,000; on presentation the same had been dishonoured and it was found that his account had been closed. He filed a petition in the Court of Syed Khurshid Anwer Rizvi, the learned Additional Sessions Judge/Ex-officio Justice of the Peace, under sections 22-A, Cr.P.C. for registration of case, in which Faraz Ahmad accused appeared and promised that he would pay the amount by 20-6-2006; however, he failed to fulfil his promise and had refused to make payment. Resultantly the instant F.I.R. had been recorded.

3. Pursuant to registration of the case, respondent No.1 was arrested whereafter he applied for his pre-arrest bail before the learned Special, Judicial Magistrate, Depalpur, however, his application was dismissed vide order dated 12-9-2006. Thereafter he moved the learned Additional Sessions Judge, Depalpur who by means of his impugned order, dated 20-9-2006 proceeded to grant post-arrest bail to the petitioner.

4. It has been observed that while granting post-arrest bail to the petitioner the learned Additional Sessions Judge did not even mention his earlier order, dated 13-5-2006 which he had passed on petitioner's application under sections 22-A, 22-B, Cr.P.C. It would, therefore, be appropriate to reproduce the said order which runs as under;-- "... Respondent No.2 is present with his learned counsel Ch. Kamran Nawazish Advocate, who has filed his Wakalat Nama today. Respondent No.2 states that he has to pay the amount of Rs.1,90,000 to the petitioner and he is ready to pay the same for which he has requested the petitioner to give some time. The petitioner had agreed to grant him time till 20-6-2006. He undertakes that he will make payment of the aforesaid amount to the petitioner on or before 20-6-2006 and if he fails to pay the same then the petitioner will get registered an F.I.R. against him under section 489-F, P.P.C. The petitioner present before this Court has accepted this offer. He requests that he may be allowed to withdraw this petition, and if he deem necessary he will file fresh petition. (2) In view of this the petition is dismissed as withdrawn...."

5. The bail granting order, dated 20-9-2006 proceeds on mere technicalities and as already stated is conspicuous for the absence of any mention of respondent No.1's undertaking, which had been given before none other than the learned Additional Sessions Judge himself who proceeded to grant him bail. There is no doubt that offence under section 489-F, P.P.C. does not attract the prohibitory clause of section 497(1), Cr.P.C. yet at the same time it is well-settled that the A mere fact that the aforesaid prohibitory clause is not attracted the respondent does not ipso facto becomes entitled to the grant of bail. Respondent No.1 had the audacity to renege on his solemn undertaking which he had given before a Court of competent jurisdiction and had thereby procured the benefit viz. prompting the petitioner in the application under sections 22-A, 22-B, Cr.P.C. not to press his petition for registration of criminal case. Grant of bail to the respondent in such circumstances amounted to giving him benefit of his own deception. Needless to say that grant of bail is a discretion which cannot be exercised in favour of a person who approaches the Court with smeared hands. This petition is, therefore, allowed and the post-arrest bail allowed to respondent No.1 by the learned Additional Sessions Judge, Depalpur vide order dated 20-9-2006 is hereby recalled. He shall be remitted to custody. H.B.T./M-351/L Bail cancelled.