2013 PLP 626 (YLR)

IQBAL HAMEED-UR-RAHMAN, C.J.

Petitioner Syed Amir Jalali son of Syed Abdul Waheed Shah seeks post-arrest bail in case F.I.R. No.80 dated 9-3-2012, registered under section 489-F, P.P.C. at Police Station Shalimar, Islamabad.

2. The summary of essential facts are that the complainant got lodged the present F.I.R. alleging therein that the petitioner handed over to him a cheque worth Rs.40,00,000 bearing No.02051511 of outstanding amount which on presentation before the Bank concerned was bounced. Hence, the present F.I.R.

3. Learned counsel for the petitioner has contended that there is an unexplained delay of five months and one day in lodging the F.I.R.; that the petitioner has been falsely implicated in this case, as the complainant has failed to produce any evidence during the course of investigation regarding any relationship of business between the complainant and the petitioner who is a Journalist and not a businessman; that the cheque was not issued by the petitioner rather the same was stolen by the complainant from petitioner's office in league with one Sardar Atique Ahmed; that said Sardar Atique Ahmed shown himself to be the real brother of the complainant in the Investigation but his statement is contrary to his CNIC, as such, case of the petitioner falls within the ambit of further inquiry; that the petitioner has reported the matter regarding theft of his cheque at Police Station Jamshaid Quarters vide Ruptt No.23 on 20-9-2011; that the absconsion of the petitioner was not deliberate rather the petitioner was totally unaware about the fact of registration of F.I.R. against the petitioner; that maximum punishment provided for the offence is only three years, as such, the same does not fall within the ambit of prohibitory clause; that the petitioner is previous non-convict and non-record holder; that the petitioner is behind the bars since his arrest i.e. on 14-10-2012; that petitioner's further detention would not serve any useful purpose. On the strength of above submissions, it is prayed that the petitioner be admitted to post-arrest bail. Learned counsel for the petitioner has also relied upon the cases of Riaz Jafar Natiq v. Muhammad Nadeem Dar (2011 SCMR 1708), Tariq Bashir and 5 others v. The State (PLD1995 SC 34) and Kashif Khan v. The State (2009 PCr.LJ 1418).

4. Conversely, learned counsel for the complainant contended that there is a glaring contradiction between the ground "A" taken in the instant post-arrest bail petition and the Ruptt No.23 dated 20-9-2011 got lodged by the petitioner as, on the one hand he has stated that the complainant has stolen away his cheque from his office but on the other hand he got recorded in the said Ruptt that he has misplaced his cheque; that the petitioner is nominated in the F.I.R. with specific role of handing over cheuqe of a huge amount which has been dishonoured subsequently; that the petitioner remained absconder for such a considerable period, as such, his conduct does not entitle him to the concession of bail. To fortify his contentions reliance has been placed on Shahzad Ahmed. v. The State through FIA, Islamabad (2010 SCMR 1221), Naveed Maqsood v. The State (2012 YLR 674), and Wajid Aman v. The State and another (2012 MLD 799 (Peshawar)).

5. Learned Deputy Attorney-General has contended that hectic efforts were made to arrest the petitioner but he deliberately concealed himself; that challan has been submitted in the Court; that dishonouring slip has been verified by the bank. Hence, the petitioner is not entitled to the concession of bail.

6. Heard arguments anxiously and studied the record minutely.

7. From the surface of record it appears that the complainant has been deprived of a huge amount of Rs.40,00,000 by the petitioner. The petitioner is nominated in the F.I.R. with specific role of handing over the cheque to the complainant. Although handing over the cheque to the complainant is denied but signature thereon is admitted by the petitioner. The record reveals that the petitioner has taken contradictory stand as in the post-arrest bail petition before this Court he has mentioned that his signed cheque was stolen by the complainant from his office at Islamabad whereas in the Ruptt No.23 dated 20-9-2011 he had taken the stance that his cheque was lost within the area of Karachi. The copies of the cheque and dishonoured slip are available with the prosecution which prima facie connect the petitioner with the commission of alleged offence. Moreover, the petitioner has remained a Proclaimed Offender for such a considerable period, as such, his conduct does not allow him to be enlarged on bail. There appears no mala fide or ill-will on the part of the complainant to involve the petitioner falsely. Only tentative assessment is required to decide the bail application and deeper appreciation of evidence cannot be appreciated at this stage. Challan has been submitted in the Court and trial is in progress. Although the offence does not fall within the prohibitory clause but in cases not hit by prohibitory clause of section 497(1), Cr.P.C. grant of bail to an accused in every case is not a rule of universal application and each case has to be dealt with on its own facts and circumstances. Reliance can be placed on the case of Ijaz Ahmed v. Muhammad Aslam and others (2009 PCr.LJ 1140) and Aamir Hussain v. The State and another (2011 PCr.LJ 265 (Lahore)) wherein it has been held as under:-- "Accused had defrauded the complainant of a huge amount of nine lac rupees by issuing bogus cheque, while such amount was not available in his account

No doubt, the offence with which the accused was charged did not fall under the prohibitory clause of S.497, Cr.P.C., but grant of bail in such like cases was not a rule of universal application and each case had to be seen on its own facts and circumstances

Deeper appreciation of evidence was neither permissible nor warranted under the law at bail stage

Out of a heavy amount of rupees nine lac accused had not so far returned even a single penny to the complainant

Accused did not deserve any leniency

Bail was refused to accused in the circumstances."

8. In view of above circumstances, I am not inclined to allow post-arrest bail to the petitioner. Consequently, the post arrest bail petition is hereby dismissed.

9. The rights of the parties shall not be prejudiced by the observations made in this order as well as the trial Court shall not be influenced by the same. MWA/159/Isl Bail refused.