' Wazir Ali, the petitioner through the instant petition has sought for post-arrest bail in Case F.I.R.
No.208 dated 22-4-2003 under section 406/489-F, P.P.C. Registered with Police Station South Cantt; Lahore.
2. Briefly the prosecution case as per F.I.R. Is that the complainant and his son Tahir Nawaz had given an amount of Rs.27,92,000 (Rupees twenty seven lacs and ninety two thousand) as Amanat to Wazir Ali (petitioner), his father Nazir Ahmad, brother Muhammad Nawaz and wife Mst. Sarwari Begum to supply long leather coats to the Exporter but they did not return the same to them and instead on different occasions Wazir Ali issued them two cheques, which were dishonoured and in this way he along with his said father, brother and wife not only caused them big financial loss but also committed the criminal breach of trust.
3. It has been contended on his behalf that he has falsely been roped in; that there is delay of about two years in lodging the F.I.R. And the same is fatal to the prosecution case against them; that the complainant on one hand has alleged that he had advanced the said amount to them as Amanat but on others had brought the suit under Order XXXVII, rules 1 and 2, C.P.C. On the basis of negotiable instruments for the recovery of that amount against him; and the same shows that the matter between them and the complainant party, if any is purely of civil nature and not criminal; that the complainant party with mala fide intention have given it the colour of criminal nature; that none of the offences against him does fall within the prohibitory clause of section 497(1), Cr.P.C.; and that he is behind the bars for the last about five months and a previous non-convict.
4. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he has taken an amount of Rs.27,92,000 from the complainant party and thereafter had refused to repay the same to them and instead issued them two cheques at different times but those were dishonoured; that he on the basis of the material available on the record is sufficiently connected with the crime; that the challan has been submitted in the Court and the commencement of the trial is insight in the near future; that bail is not to be granted as a matter of course in the cases involving offence not falling within the prohibitory clause of section 497(1), Cr.P.C.; and that he has defrauded many other persons in similar way and so is a habitual offender.
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. According to the F.I.R., the complainant party had given the said amount to the petitioner and his aforementioned co-accused on 29-8-2001. The instant F.I.R. Was registered on 22-4-2003. It thus, was after about two years of the same. Further according to the F.I.R., the cheques were dishonoured on 30-10-2001. The case was registered even about 1-1/2 year after the same.
7. Besides than this, there is with this petition, the copy of plaint in the suit for the recovery of Rs.24,00,000 under Order XXXVII, rules 1 and 2, C.P.C. Brought by the complainant/corporation against the petitioner. The relevant portion from para. No.3 of the same is reproduced herein below for facility of reference:-- "That a regular agreement-deed was executed on 29-8-2001 between the plaintiff and the defendant.
That the defendant issued two cheques in consideration of the amount he received and in lieu of a part of the profit due to the plaintiff in accordance with the said agreement. The cheques No.03820732 dated 27-10-2001 for A an amount of Rs.17,00,000 of Account No.37933-6 in the Habib Bank Limited, Main Market, Gulberg-II, Lahore."
8. The above position clearly shows that in respect of the disputed amount an agreement was executed between the parties on 29-8-2001.
9. The complainant/Corporation in the para.10 of the plaint has mentioned that the suit is based upon negotiable instruments i.e. The cheques allegedly issued by the petitioner in it's favour.
10. In the prayer clause of the same, it has been prayed that a decree for Rs.24,00,000 may be passed in it's favour and against the petitioner, who is defendant in the same at the rate of 2% above the Bank rate. This clearly shows that the dispute between the parties in respect of the said amount is essentially of civil nature and the complainant/Corporation itself had opted to knock the door of the Civil Court for the recovery of the amount. This has also shown that on one hand the complainant alleges that he and his son had advanced that amount to the petitioner and his co- accused as 'Amanat' and on the other had relied upon the said agreement in praying for decree for recovery of the amount in his favour in that suit.
11. In the case of Miraj Khan v. Ghulam Ahmad and 3 others 2000 SCM R 122, the Honourable Supreme Court of Pakistan has held that addition of the word "Amanat" with "Qarza Hasna" was ridiculous and appeared to have been added so as to justify the registration of the criminal case.
12. The above position clearly indicates that the parties are in litigation before competent Civil Court over the disputed amount. The decision in respect of the same is to be made therefrom.
Hence, the case against the petitioner essentially has become one of further inquiry into his guilt.
The same, therefore, is covered under subsection (2) of section 497, Cr.P.C.
13. Even otherwise, none of the offences against him falls within the prohibitory clause of section 497 (1), Cr .P.0 .
14. In these circumstances, he merely for the reason that huge amount is involved cannot be refused bail.
15. He is stated to be behind the bars for the last about fii/e months and previous non-convict. The same has not been controverted by the other side.
16. I, thus find that the case for his enlargement on bail has been made out. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.