ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No. 14 of 2013
Date Order with signature of Judge
FOR HEARING.
{Statement dated 21.1.2013 and 20.3.2013 along with annexures filed}
27th May, 2013.
Mr. Sameer Ghazanfar, Advocate for the applicant.
Mr. Zahoor Shah, A.P.G. Sindh.
Mr. Noman Jamali, Advocate for the complainant.
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SYED MUHAMMAD FAROOQ SHAH, J.:- Bitter acrimonious partnership relations in between the complainant and applicant/accused surfaced when the applicant Syed Obaid Ahmed issued a cheque bearing No. 4170103 dated 31.01.2012 amounting to rupees five millions to the complainant Muhammad Haneef for repayment and the same was bounced/dishonored. Consequently, the complainant Muhammad Hanif lodged the F.I.R. bearing No. 406/2012 at Police Station Ferozeabad, on 30.03.2012, under section 489(F) PPC.
Contents of the said FIR reveals that the complainant invested rupees forty one millions on the project to be developed on plot bearing No. 26-B, consisting 16 acres of land, situated in KDA Scheme No.33, Karachi. It is averred by the complainant that the applicant never owned the said land and rather he had mis-represented with the complainant and thereafter assured the complainant to return his amount but till date Rs. eighteen millions are outstanding for which on 31.01.2012 the applicant issued a cheque of Rs. five millions but the same was returned by the bank due to insufficient funds. It is alleged that thereafter the applicant kept the complainant on false promises and lastly issued threats of dire consequences. After registration of the FIR, the concerned police started investigation and submitted the charge sheet before the learned Trial Court on 16.08.2012. From perusal of record, it appears that in Criminal Bail Application, bearing No. 1631/2012 filed before concerned Sessions Judge, the applicant was admitted on interim bail which was later-on dismissed for non-appearance of the applicant and thereafter in another Criminal Bail Application No. 1674/201, repeated by the applicant interim bail was again granted to him but the same was once again dismissed on 15.10.2012 for non-appearance of the applicant. While invoking the alternate jurisdiction of this Court the applicant has preferred instant bail application, for pre-arrest, wherein by an order dated 03.01.2013 he was admitted to interim pre-arrest bail and the application is coming up for confirmation of bail or otherwise.
Learned counsel for the applicant submitted that the alleged cheque amounting to Rs. five millions bears the signature of applicant but submitted that both, the complainant and applicant were partners and factual position may be ascertained after leading of evidence, as to whether cheque was indeed issued towards repayment of loan and fulfillment of obligations or not. It is next contended by the learned counsel for the applicant that the dispute between the parties is of a civil nature and the complainant has unnecessarily set the criminal machinery into motion only to cause unnecessary harassment and humiliation to the applicant, with a sole motive and intention. He submitted that the offence being punishable with imprisonment of three years does not fall within the prohibitory clause of section 497, Cr.P.C. Learned counsel next contended that the FIR was lodged at belated stage and that the dispute between the parties has arisen out of business deal hence the case is of further inquiry. To support his contentions, reliance is being placed on the cases of MIAN ALLAH DITTA V/S. THE STATE AND OTHERS (2013 SCMR 51), IMAM BUX ALIAS AMOO AND ANOTHER V/S. THE STATE (PLD 2012 Sindh 212), TARIQ BASHIR AND 5 OTHERS V/S. THE STATE (PLD 1995 S.C. 34) and RAIS WAZIR AHMED V/S. THE STATE (2004 SCMR 1167).
Conversely, learned counsel for the complainant, duly assisted by learned A.P.G. submitted that sufficient iota of evidence available on the record shows dishonest and malafide intention on the part of the applicant. Having no sufficient funds in the concerned bank, the applicant issued the cheque; therefore he is not entitled for anticipatory bail. To support his contention learned counsel representing the complainant has relied upon the cases of MUHAMMAD NASEEM V/S. THE STATE (2012 P Cr.L.J.918), RANA MUHAMMAD ARSHAD V/S. MUHAMMAD RAFIQUE AND ANOTHER (PLD 2009 S.C. 427), SHAMEEL AHMED V/S. THE STATE (2009 SCMR 174), RAO QADEER KHAN V/S. THE STATE (PLD 1981 S.C. 93), and MUHAMMAD SIDDIQUE V/S. IMTIAZ BEGUM AND 2 OTHERS (2002 SCMR 442).
I have considered worthy contentions advanced by learned counsel for the parties and learned Assistant Prosecutor General Sindh; I have also gone through the record and carefully perused the rulings cited by both the learned counsel.
Partnership business in between the complainant and the applicant is however admitted and issuance of cheque amounting to Rs. five millions by the applicant has also not been denied, therefore, the element to constitute an offence under section 489-F PPC, with regard to issuance of cheque with dishonest intention is available. The cheque was certainly issued towards repayment/return the amount, invested by the complainant in the so called project. The circumstances indicate that the foundational element of section 489-F PPC are prima facie available, therefore the latest citation relied upon by learned counsel for the applicant, viz. 2013 SCMR 51 is not attracting in the circumstances of the present case. As far the case of Tariq Bashir (supra) relating to the grant of bail under section 497 Cr.P.C. is concerned, the said principle and dictum may not be ipso facto applied in the case of pre-arrest bail within the provisions of section 498 Cr.P.C. Furthermore, the conduct of the applicant before the learned trial court was such that twice he was admitted on anticipatory bail and then absented himself, in result of which his two bail application were dismissed by the learned Session Judge. Even otherwise, he did not show his appearance before the trial court after when he was granted anticipatory bail by learned Session Judge, which amounts to abuse of process of law and court. So for as lodging the FIR at belated stage is concerned, the complainant has given plausible explanation which is sufficient to ignore the delay. Sufficient material is available on the record which depicts that after obtaining interim pre arrest bail, the applicant misused the concession of bail and absconded from the trial court and has been declared as proclaimed offender. More-so, huge amount of Rs. forty one millions was allegedly invested by the complainant and a cheque of Rs. five million has been issued for repayment by the applicant dishonestly, which on its presentation to the concerned bank was bounced. The malafide of the applicant is evident from the record and it is settled proposition of law that grant of bail to an accused in case not falling under the prohibitory clause of section 497 Cr.P.C. is not a rule, particularly each case has to be dealt with on its own merits. In the case of Anwar Gul (supra), the Hon'ble Supreme Court of Pakistan observed that fugitive form law and courts losses some of the normal rights granted by the procedural as also substantive law and unexplained noticeable abscondence disentitles a person to the concession of bail, notwithstanding the merits of the case. It has further been held that accused cannot seek a reward for such conduct in becoming fugitive from law and bail was refused in the circumstances.
The Hon'ble Supreme Court in the case of Rana Muhammad Arshad (supra) while observing that no court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest, especially the condition regarding mala fides were proved. The Hon'ble Court has drawn the frame work within which and the guidelines according to which the jurisdiction vesting in the High Courts and the court of Sessions is to be exercised. It shall be advantageous to reproduce the relevant portion for guidelines as follows:
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and That there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e. the Court of Session, before petitioning the High Court for the purpose.
In the case of Muhammad Siddique (Supra) the Hon'ble Supreme Court of Pakistan has held that none can claim bail as of right in non-bailable offences even though the same does not fall under the prohibitory clause of section 497 Cr.P.C..
The submissions of learned counsel for the applicant that the offence being punishable with imprisonment of three years, does not fall within the prohibitory clause of section 497, Cr.P.C. should be deemed as a bailable offence as in such like offences, the grant of bail is a rule and rejection thereof is an exception, cannot be entertained. I advantageously rely upon "Shameel Ahmad v. The State" (2009 SCMR 174), and observe that an accused notwithstanding the punishment of imprisonment, not falling under the prohibitory clause, cannot be admitted to bail as a matter of right overlooking the attending facts and circumstances of the case. For seeking bail in a non-bailable offence, it is incumbent that the accused shall establish prima facie, the fact that his case is open to further inquiry. The prosecution case against the applicant brims with incriminating connecting evidence with regard to misrepresentation and he obviously has committed a non-bailable offence, falling outside the scope of further inquiry as contemplated under the above-said provision of law. In view of the above discussion, more particularly, dicta as laid down by the apex court, I reached at the irresistible conclusion that investment of Rs. forty one millions was initially involved in this case, which was received by the complainant due to misrepresentation of facts, however after when the cheque of Rs. five million became dishonored, the applicant did not took any remedial measures for amicable settlement or for its payment to the complainant, therefore in such circumstances, the concession of pre-arrest bail cannot be extended to the applicant. Resultantly, the instant bail application is dismissed having no merits for consideration. The surety furnished by the applicant on 04.1.2013 before the Nazir of this court for interim pre-arrest bail is discharged, accordingly.
The order being tentative in nature shall not affect the merits of the case in any manner pending before the trial court.
Aamir/PS J U D G E