1. ' MUHAMMAD AFZAL SOOMRO, C J.---Respondent No,2 Sajid Mehdi was granted interim bail by the trial Court which was confirmed on 12-4-2007. The complainant being dissatisfied with the said order has filed the present application for cancellation of bail.
2. ' The brief facts of the case that the complainant had business dealings with respondent No,2, who owed the applicant-about 5 lacs. The applicant/complainant in lieu thereof issued five cheques on the MCB Gulistan-e-Jauhar in favour of the applicant. All the cheques were dishonoured. The applicant kept on reminding the respondent for payment of the same but the said money was misused by the respondent. The respondent did not pay the said amount.
3. ' The learned counsel for the applicant/complainant contended that as per settled law for pre- arrest bail mala fide, malicious prosecution is the only valid lawful ground which does not exist in the circumstances of this case; that it is not a civil nature case and even in civil cases criminal liabilities/acts are never lost sight of and the learned superior courts have never quashed criminal proceedings; that prima facie case of bouncing cheque has been made out and lastly contended that in these circumstances the bail granted to the applicant by the trial Court may be cancelled.
4. He has relied upon the cases of Mst. Qudrat Bibi v. Muhammad Iqbal and others 2003 SCMR 68, wherein it was held that concession of bail before arrest is granted to an accused if it is established that his involvement in the case is based on mala fides by the prosecution. Syed Rashid Hussain v.
5. Muhammad Ismail and others 1976 PCr.LJ 673 wherein it has been held that cheating accused persons in five transactions purchasing wheat and issuing cheques in payment but cheques dishonourned for no balance. Question whether at time of issuing cheques accused had no intention to make payment depending on evidence yet to be recorded by trial Court. Mere fact that a case of civil liability also made out was not sufficient for quashing criminal proceedings and lastly Dodo Khan v. Jalaluddin and others PLD 1973 Kar. 554 to the same effect.
6. ' Learned A.A.-G. Has supported the impugned order.
7. ' Learned counsel for the respondent No,2/accused contends that accused and complainant were business partners and all cheques were given to him as security of the loan provided by the accused; that the accused deals in surgical instruments and in the month of November, 2005 the accused invested Rs,100,000 and complainant invested Rs,10,00,000. Thereafter profit or loss used to be distributed on quarterly basis. All ledgers are in possession of the complainant; thereafter some tussle between the parties was created on accounts and complainant asked his money back from the accused, on which accused informed him that this is a matter of account between the parties, however, the complainant misused the cheques and got them dishonoured without intimation to the accused. Learned counsel in support of his contention has referred the case-law reported as Maj. (R.) Javed Inayat Khan Kiyani v. The State 2006 CLD 1314 wherein it has been held that before approaching investigation agency or launching a criminal prosecution, it was necessary to establish, prima facie, that cheque was issued dishonestly and with the intention to defraud. To know the intention of a drawer, a payee could give a notice to the drawee after dishonour of cheque by the drawee and before approaching the police or the Court---word "dishonestly" employed in section 489-F, P.P.C., required concious and serious consideration. In the case of Muhammad Mukhtar v. Sajjad Hussain and others 2004 YLR 2227, it has been held that no useful purpose is likely to be served if bail of accused is cancelled on any technical ground because after arrest they should be allowed bail on ground that case against accused is punishable only to extent of three years or with fine or with both-petition dismissed being devoid of any force. In the case of Maj. Anwarul Haq v. The State PLD 2005 Lah. 607 it has been held that rationale behind the enactment of section 489-F, P.P.C. Does not call for a mechanical action immediately when a cheque is returned by a banker but is to be used only where, prima facie, the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan.
8. Past conduct of parties is also to be seen. Business transactions, genuine disputes and contractual obligations may not constitute an intention for the offence. In Bashir Dawood and others v. Tanveer Ahmed and another 2000 PCr.LJ 1230 it has been held that matter on the face of it was purely of civil nature. Civil liability could not be enforced by criminal prosecution.
9. ' I have heard the learned counsel for the parties and perused the case-laws.
10. Admittedly the dispute relates to accounts. The parties are partners in loss and profit. The offence is punishable up to 3 years and does not fall within the prohibitory clause contained in section 497, Cr.P.C. The.Grant of bail in such a case is a rule and refusal is an I exception. It is yet to be seen as to whether the purpose of issuing the cheque was dishonesty or not and in this regard past conduct of parties is also to be seen. It is also settled principle that business transaction, genuine disputes and contractual obligations may not constitute an intention for the offence.
11. ' In view of what has been discussed above, I am inclined to hold that the trial Court has rightly granted bail to the accused. Therefore I dismiss this Criminal Miscellaneous application.