IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD
Criminal Bail Application No. S-430 of 2022
Applicant: Qamaruddin Magsi, through Mr. Muhammad
Hashim Laghari, advocate.
Complainant: Qazi Abdul Sattar through Mr. Irshad Ali
Jahejo, advocate.
Respondent: The State through Ms. Rameshan Oad,
Assistant Prosecutor General, Sindh.
Date of hearing: 25.07.2022
Date of decision: 29.07.2022
O R D E R
KHADIM HUSSAIN TUNIO, J- Through captioned application, the applicant seeks confirmation of pre-arrest bail in Crime No. 28/2022, registered with Police Station GOR Hyderabad for the offence punishable u/s 489-F PPC. He had approached the learned Model Criminal Trial Court-1 Hyderabad with the same plea, but it was refused vide order dated 08.06.2022, hence this application.
2. It is alleged that the complainant and the applicant were in a business together since 2015, but in 2017 the business came to an end. The complainant demanded a return of his share of Rs. 90,00,000/- [Rupees Ninety Lac] which he had initially invested and the applicant allegedly issued him a cheque bearing No. 4177305 amounting to Rs.50,00,000/- [Rupees Fifty Lac] dated 18.01.2018 and 4 other cheques bearing Nos.1700193 to 196. When the complainant presented the same before his bank, the cheques were bounced. The applicant then allegedly requested for four year time and on its expiry, the complainant deposited the cheques again and they bounced again. As such, the complainant lodged the FIR.
3. Learned counsel for the applicant argued that the applicant is innocent and the alleged offence has not been committed by him; that the allegations against the applicant are ill-motivated and baseless; that there was no liability or obligation or outstanding payment of the applicant towards the complainant; that the complainant has registered the instant case against the applicant to pressurize and blackmail him in the civil matter pending between the parties; that the cheques of the applicant were misplaced along with his wallet for which he also published several newspaper clippings; that nothing was brought on record by the complainant against the applicant to suggest that they were in business together; that the cheques allegedly issued were encashed after the six months period and then the complainant in connivance with bank employees got the memos issued. In support of his contentions, he has cited the case law(s) reported as Riaz Jafar Natiq v Muhammad Nadeem Dar and others (2011 SCMR 1708), Muhammad Iqbal v The State and another (2018 YLR Note 157) and Noor Ahmad v The State and others (2020 YLR 2064).
4. Learned state counsel and learned counsel for the complainant in one voice opposed the grant of bail to the applicant while contending that the applicant has taken contradictory pleas; that the cheques were in fact issued by the applicant dishonestly and the same were then dishonored.
5. I have heard the learned counsel for the parties and have also examined the record, so made available carefully.
6. It will be advantageous here to mention the ingredients needing satisfaction when dealing with a case involving offence punishable under section 489-F PPC. It must be established that a cheque was issued by a party with dishonest intention towards a repayment of loan or fulfillment of any obligation and on presenting the same with the concerned bank, the same must be dishonoured. In the present case, the applicant issued five (05) cheques, one amounting to Rs.50,00,000/- through Cheque No. 4177305 which clearly shows the name and signature of the present applicant. The four other cheques, each amounting to Rs.10,00,000/- bearing cheque Nos. 1700193, 194, 195 and 196 also bear the name and signature of the applicant. Each of these cheques are also accompanied by two memos, one dating back to 2018 and the other dating to 2022. These show that the reason for the cheques bouncing was because the same were for closed accounts and had insufficient balance. The applicant first contended that his cheques were stolen along with his wallet for which he has produced a NC report and then other newspaper clippings. The same newspaper clippings do not bear any details regarding the cheques and it appears highly unlikely for the applicant to have misplaced cheques and then they were found by the complainant who forged them. Then, the applicant contended that the cheques were encashed beyond six month, however the same is not a law rather a means of consumer protection by the State Bank of Pakistan which entails that a bank would be under no obligation to encash a cheque beyond six months of issuing, however this is discretionary and not a mandatory requirement. This alone constituted the framework of an offence punishable u/s 489-F, PPC.
7. The mere fact that the offence for which the applicant is charged does not hit the prohibitory clause of section 497, Cr.P.C. cannot per se make him entitled to the concession of bail. Grant of bail in such like cases is not a rule of universal application as each case merits decisions on the basis of its own facts and circumstances. Reliance, in this respect, may advantageously be placed on the cases of Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442), Shameel Ahmad v. The State (2009 SCMR 174) and Syed Hasnain Hyder v. The State (2021 SCMR 1466). Not only this, the grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction. It is a diversion of usual course of law and arrest in cognizable case. It is protection to the innocent person being hounded on trump-up charges through abuse of process of law, therefore, anyone seeking judicial protection is required to reasonably demonstrate that their intended arrest is calculated to humiliate him with taints of malafide. Pre-arrest bail is not a substitute for post-arrest bail in every run of the mill criminal case as it seriously hampers the investigation. In the present case, the applicant has miserably failed to prove that. In this respect, reliance is placed on the case law(s) reported as 2019 SCMR 1129 (Rana Abdul Khaliq v. The State) and 2020 SCMR 249 (Gulshan Ali Solangi v. The State). It may not be out of place to mention here that the issuance of cheques which are in turn dishonoured has taken our society by storm so much so that such instrument is looked upon by the beneficiary with a degree of doubt and skepticism till it is honoured by the concerned bank.
8. For what has been discussed above, instant criminal bail application being without merit or substance is dismissed. Consequently order dated 10.06.2022 for grant of interim pre-arrest bail, is hereby recalled.
9. Before parting with this order, it may be observed that the observations made hereinabove are tentative in nature and the trial Court shall proceed with the trial of the case, without being influenced from the same in any manner.
JUDGE