' IQBAL HAMEED-UR-REHMAN, J.---Petitioner seeks pre-arrest bail in a case registered vide F.I.R.
No,790/2007, dated 3-7-2007 under section 489-F, P.P.C. At Police Station, Allama Iqbal Town, District Lahore.
2. The allegation against the petitioner as per F.I.R. Is that the petitioner stood surety for his brother Muhammad Rashid Javed in connection with an agreement of mortgage who received an amount of Rs,5,00,000 from Nazim complainant and later on the petitioner issued cheque for an amount of Rs . 5,31,000 which was dishonoured.
3. The petitioner applied for grant of pre-arrest bail before the learned Addl. Sessions Judge, Lahore which was dismissed vide order dated 24-7-2007.
4. Learned counsel for the petitioner at the very outset stated that his main arguments regarding this petition is the same which were at the time of grant of ad interim bail to the petitioner on 27-7- 2007;that the case has been registered with mala fide intention. The petitioner is only a witness of the agreement of mortgage which was neither executed by him nor he stood surety in the said agreement. Moreover the cheque which had been subsequently issued by the petitioner was obtained through fraud. At the most, it is a case of civil liability. Further that the petitioner is merely a witness of the agreement and nothing else. It was a dispute between the brother of the petitioner with the complainant and that a witness cannot be changed into a surety. The account was closed because the cheque had been obtained from the petitioner through fraud, as such the offence under section 489-F, P.P.C. Cannot be attributed to the petitioner and the offence does not fall within the prohibitory clause, therefore, the petitioner is entitled to the grant of pre-arrest bail.
5. On the other hand, the bail has vehemently been opposed by the learned counsel for the complainant as well as by the learned D.P.G. On legal as well as factual premises. First it is stated that it is a case of pre-arrest bail. The conduct of the petitioner is to be taken into consideration that the petitioner obtained ad interim pre-arrest bail from the Court of learned Addl. Sessions Judge, Lahore on 6-7-2007 and thereafter he had been obtaining adjournments, as such the extraordinary concessional relief of pre-arrest bail cannot be afforded to the petitioner. Secondly, the petitioner has not been able to establish any mala fide or ulterior motives, which can be attributed to the complainant or to the police. That the issuance of the cheque is admitted, only a single word has been used in generality that fraud has been committed but the petitioner has been unable to advance a single arguments or documentary proof or an iota or evidence regarding the fraud having been committed. Only by - using the word fraud the mala fide cannot be established. That the role attributed as a witness has nothing to do with the subsequent act of criminology. It is further stated that the petitioner and his brother have devised a novel method of depriving the complainant of an amount of Rs,5,00,000. Initially his brother Muhammad Arshad Javed obtained Rs,5,00,000 against a mortgage of a shop situated at Ichhra, Lahore and thereafter after obtaining the amount of Rs,5 lacs from the complainant' they did not deliver the possession of the shop to the complainant nor they paid any rent of the shop to the complainant instead Muhammad Arshad Javed issued cheque which could be encashed within four months, the said cheque could not be enchased as they had closed the account one day before its encashment. At this stage through the intervention of the respectables of the market the third brother admitted the liability of his brothers and issued a cheque which would be encashed after 40 days, the same was dishonoured and could not be encaShed. In the above perspective where the issuance of cheque is admitted by the petitioner the offence under section 489-F P.P.C. Is fully attracted. -Twice the complainant has been deprived of his hardened money. It is further argued that the said offence after the amendment has been made non-cognizable offence. The petitioner has been involved in a .Series of fraud as such, he is not entitled to the grant of bail on the conduct of the petitioner as well as on the merits of the case.
6. Arguments heard. Record perused.
7. Admittedly the petitioner had issued the cheque when the brother of the petitioner after obtaining Rs, 5,00,000 from the complainant had failed to hand-over the possession of the shop to the complainant in pursuance to the agreement of mortgage. Thereafter he had issued a cheque which could not be encashed as the account was closed one day before its encashment.
Thereafter the petitioner on the intervention of the respectables of the market undertook to pay the said amount and issued a cheque of Rs,5,31,000 which also was dishonoured and could not be encashed. At this stage, when the petitioner is seeking pre-arrest bail and no mala fide has been proved against the complainant and the police, the pre-arrest bail cannot, be granted to the petitioner. The petitioner has not been able to show any mala fide on the part of the complainant.
Moreover the mala fide on the part of the petitioner and his brother is established. A By relying upon the cases of Unilever Pakistan Limited through Manager v. Muhammad Rafique and another (2005 YLR 686), Muhammad Javed v. The State (2007 YLR 309) and Jehan Khan v. The State (PLD 2006 Lah. 302) no case for grant or pre-arrest bail is made out. Grant of pre-arrest bail is an extraordinary concessional relief in which the conduct of the petitioner is to be taken into consideration. In view of the conduct of the petitioner, the petitioner does not deserve to be granted the extraordinary relief of pre-arrest bail by this Court, therefore, this bail petition is dismissed.