2010 PLP 1711 (MLD)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Mohammad Taj by way of the instant petition has prayed for bail after-arrest in case F.I.R. No. 652 registered under section 489-F, P.P.C. with Police Station City Depalpur, District Okara on 1-10-2009.

2. Briefly the allegation against him as per the F.I.R. is that he owed an amount of Rs. 4,50,000 to the complainant and in lieu thereof, issued him a cheque drawn on Muslim Commercial Bank, Branch, Depalpur on 24-7-2009, which on presentation was bounced of want of insufficient funds.

3. After hearing the learned counsel for the parties and going through the record, I find that he statedly is behind the bars since 19-1-2009 and a previous non-convict. The fact remains that the offence does not attract the prohibition contained in section 497(1), Cr.P.C. According to the case of Tariq Bashir and five others v. The State (PLD 1995 SC 34), grant of bail in such like cases is a rule and refusal and exception.

4. However, with all fairness, it may be mentioned here that it has been argued by the side of the complainant that he earlier is involved in four other cases of the type and so, is a habitual person and in support of his such submission, he has placed reliance upon the case of Jehan Khan v. The State (PLD 2006 Lahore 302) and Shameel Ahmed v. The State (2009 SCMR 174).

5. As regards the pendency of four other cases of the type against him, it has been argued on his (petitioner) behalf that he is on bail in all such cases and no conviction in any of these; and that mere pendency of earlier cases against him is not sufficient to refuse discretionary relief of bail to him and in support of such submission, the reliance has been placed upon the case of Asmat v. The State (2006 PCr.LJ 1866 Karachi).

6. Before entering into further discussion on such aspect of the matter, I may mention here that it is by now well settled principle in criminal administration of justice that each criminal case is to be adjudged in the background of it's own facts and circumstances and that the facts of two criminal cases is seldom coincide.

7. No doubt, grant of bail with the Court is always discretionary but this is subject to the condition that such exercise must always be judicious and within the frame of well-settled proposition. It is also well settled proposition in law that bail cannot be withheld as punishment.

8. The case of Jehan Khan v. The State (PLD 2006 Lahore 302), though was in the offence of the type as is herein but it has proceeded on different facts and circumstances. A precedent will be applicable on a given case, when it will be on all fours to it. The position while said above is not exactly the same in the case of the petitioner as was in that case.

9. In the case of Asmat v. The State (2006 PCr.LJ 1866 Karachi), their lordships have been pleased to observe that mere pendency of other case against the accused is not a sufficient ground to refuse discretionary relief of bail to him. The Hon'ble Supreme Court has also expressed the similar view in the case Aftab Hussain v. The State (2004 SCMR 1467). Respectfully following the view of their lordships, I find that the same is applicable herein the situation of his (petitioner) case.

10. As regards the case of Shameel Ahmad v. The State (2009 SCMR 174), the same in much way has proceeded on different facts and circumstances than that of him. In that case the accused had remained an absconder and he did not surrender himself before the trial Court. Their lordships taking into consideration such facts and circumstances have been pleased to observe that each case has to be seen on it's own facts and circumstances and grant of bail no doubt is a discretion granted to court but it cannot be fanciful or perverse. So, in some way, the said case can be distinguished from his case.

11. Taking into consideration all the above facts and circumstances, I am of the view that he has succeeded in making out a case for bail.

12. The petition, therefore, is accepted and he is admitted to bail - subject to his furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-231/L Bail granted.