IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application No.380 of 2011. _____________________________________________________

Date Order with signature of Judge

For hearing of M.A.No.4589/2011

Date of hearing: 29.09.2011

Date of order : 04.10.2011

Mr. S.M. Gharib Nawaz Daccawala, Advocate/Complainant in person.

Mr.Aman Khattak, advocate for the respondent/accused alongwith respondent.

Mr.Zahoor Shah, A.P.G.

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O R D E R

Aqeel Ahmed Abbasi, J: Through listed application, filed under Section 561-A Cr.P.C, the complainant has sought enhancement of surety amount from Rs.1,00,000/- to Rs.7,00,000/- being the amount of dishonoured cheques.

2. It is contended by the complainant that since there is a prima-facie case against the respondent/accused, who has taken loan from the complainant and had issued four cheques for repayment of such loan in the sum of Rs.7,00,000/-, therefore, the amount of surety should have been equivalent to the amount of dishonoured cheques.In support of his contention, the complainant has placed reliance in the case of Abdul Sattar v. The State 2011 Y.L.R 863 (Lahore), Zahid Iqbal v. The State 2011 Y.L.R 1284 (Lahore), Ali Hakimuddin Ghulam Ali Mandviwala v. The State and another 2009 M.L.D 1189 and Sikandar Zaman v. The State and others 2011 SCMR 870.

Conversely, learned counsel for the respondent/accused has vehemently opposed the maintainability of the instant application filed under Section 561-A Cr.P.C. It is contended by the learned counsel that in a disposed of matter whereby the bail was granted to the respondent/accused vide a detailed order dated 19.5.2011, an application under Section 561-A Cr.P.C is not maintainable as no proceedings are pending before this Court and the matter is a past and closed transaction. It is further contended that even in terms of Section 498 Cr.P.C, an application can be filed by an accused person for reduction of the surety amount, whereas there is no provision in Cr.P.C whereby an application for enhancement of the surety could be made. Learned counsel further contended that objection relating to quantum of the surety has already been dealt in detail by this Court in the bail granting order dated 19.5.2011, therefore, any modification in this regard would amount to review of the order, which per learned counsel, is not permissible under the law. While concluding his arguments he has submitted that the complainant is bent upon to cause injury to the person and reputation of the accused, who is a lady doctor by profession and has been the client of the complainant, who has misused the fiduciary relationship. Per learned counsel, the complainant is not proceeding with the case pending before the learned trial Court and has chosen to file instant frivolous application, which is liable to be dismissed with cost.

Learned A.P.G has submitted that though fixation of the amount of surety is the discretion of the Court which may vary from case to case, however, there are cases where the amount of surety has been fixed equivalent to the amount of dis-honoured cheques.

I have heard the complainant, learned counsel for the respondent/accused as well as the learned APG and perused the bail granting order dated 19.5.2011. It may be observed that whatever has been urged through listed application before this Court has already been dealt with in paras 13,14 and 15 of the bail granting order. It appears that through listed application, the complainant has attempted to seek review of the order, however, could not refer to any provision of law whereby such request could be entertained in this manner. The complainant has not cited any case law wherein it has been held that while granting bail in a case, not falling within the prohibitory clause, the fixation of amount of surety is not the discretion of the Court, or in case of an offence fallen under Section 489-F, PPC, the surety amount has to be necessarily equivalent to the amount of the dis-honoured cheque(s). I am of the view that fixation of amount of surety is the discretion of the Court, which may vary from case to case, whereas its fixation to an amount equivalent to the amount of dishonoured cheque(s) cannot be applied as a rule of thumb.

I do not find any substance in the listed application, which is hereby dismissed.

JUDGE