1. ' SAJJAD ALI SHAH, J.---Through this Criminal Miscellaneous A Application, under subsection (5) of section 497 of the Code of Criminal ' Procedure, the applicant/complainant seeks cancellation of bail granted to accused/Respondent No,2 by the District and Sessions Judge Karachi A South in Crime No,84 of 2005 under sections 489- F, 420, 406, 114, 109, 34, P.P.C. Of Police Station F career, Clifton Town, Karachi.
2. ' Briefly, the complainant on 18-6-2005 lodged an F F.I.R. Reporting therein that he being owner of 43.21 acres of land in Deh Landhi was lured by accused Muhammad Yousuf Shamsi, Chairman of Shamsi Builders to enter into an Agreement with his Company whereby a Project was planned out and the price of land was fixed at Rs,18,00,000 per acre. It was agreed that a joint account in a recognized bank shall be opened and the receipts of the Project shall be deposited therein. The complainant besides the price of land was entitled to 50% out of the profits of the Project. However, after sometime the complainant came to know that he was not paid in accordance with his share nor the proceeds of the Project were deposited in the common account giving rise to a dispute which ultimately was settled by issuance of seven cheques by the accused in the sum of Rs, one million each and eighth cheque of Rs,4,59,083 from the joint account with an assurance to make sufficient funds available in the bank for the encashment of cheques. The complainant being Joint 'Signatory, after countersigning, presented the cheques for realization of proceeds but the same were dishonoured giving rise to the instant complaint.
3. ' The respondent/accused moved an application for the grant of pre-arrest bail which was declined by the learned Sessions Judge vide his order, dated 22-11-2005 but subsequently vide its order, dated 7-12-2005 allowed bail after arrest against surety of Rs,200,000.
4. ' Mr. M. Ashraf Kazi, learned counsel for the applicant, has contended that the prime consideration which prevailed with the Court below for the grant of bail appears to be that the offence does not fall within the ambit of prohibitory clause and further that some civil litigation was pending between the parties. Per learned counsel, the grant of bail in cases which do not fall within the prohibitory clause is not a rule of thumb and the instant case was one where the accused, admittedly, committed breach of his obligation disentitling himself from the concession of bail and further that in cases of like nature civil litigation for the purposes of recovery is inevitable. It was next contended that mere pendency of the civil suits does not, itself, entitle the accused for the concession of bail. In the last, it was contended that even if the trial Court was inclined to grant bail then the surety amount, at least, should have been equal to the total amount for which the cheques were issued. In support of his contention, Mr. Kazi has placed reliance on the cases of Imtiaz Ahmed and another v. The State (PLD 1997 SC 545), Shamrez Khan v. The State (2000 SCM R 157), Muhammad Siddique v. Imtiaz Begum (2002 SCM R 442), Abdul Waheed v. The State (2004 SCM R 319) and unreported order of this Court in the case of Dr. Waseem Ikram Alvi v. The State (Criminal Miscellaneous A. No,170 of 2008).
5. ' In reply, Mr. Raza Hashmi, learned counsel for respondent No,2/acused, by placing reliance on the judgment of this Court in the case of Muhammad Rizwan v. The State (2007 PCr.LJ 78), has contended that no grounds for cancellation of bail as laid down by the superior Courts have been made out, therefore, the application is liable to be dismissed. Per Mr. Hashmi, bail can only be cancelled in cases where it appears to have been granted in capricious manner either without assigning any reason or on the basis of perverse and invalid reasons or if the accused attempts to tamper with the evidence, hampers investigation or attempts to commit same offence or absconds after grant of bail. Since none of the conditions exists, therefore no case for cancellation of bail is made out and the application is liable to be dismissed.
6. I have heard the learned counsel for the respective parties and have perused the record as well as the case-law cited at Bar.
7. ' A minute perusal of order 7-12-2005 of the learned District and Sessions Judge Karachi South whereby the respondent/accused was granted bail reflects that the main consideration which prevailed before the learned Judge while granting bail was that the offence did not fall within the ambit of prohibitory clause and grant of bail in such cases is a rule and refusal is an exception. (A Principle laid down by the apex Court in the case of Tariq Bashir v. The State, PLD 1995 SC 34).
8. ' Now the question which requires consideration appears to be as to whether cases under section 489-F, P.P.C. For the purposes of grant of bail would fall in the category of cases where the bail should be granted as of a rule and secondly even if such cases fall under this category then as to whether the surety amount should be proportionate to the amount of the dishonoured instrument or not.
9. The apex Court in the oases referred by Mr. Ashraf Kazi, has invariably held that no one can claim bail as of right in non-bailable offence even though the same does not fall under the prohibitory clause of section 497, Cr.P.C. And in the case of Imtiaz Ahmed (supra) the apex Court for the purposes of grant of bail has drawn a distinction between an offence committed against an individual and an offence directed against the Society as a whole and likewise an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office and has concluded that in former case the practice to allow bail as of a rule, in cases not falling under the prohibitory clause of section 497, Cr.P.C., in absence of exceptional circumstances may be followed, but in the later category, the Court should be strict in exercise of discretion of bail. Whereas, in the case of Shamrez Khan (supra) the Hon'ble Supreme Court directed the confirmation of bail upon deposit of the alleged misappropriated amount.
10. ' Taking up the first question in the light of the principle laid down by the apex Court in the case of Tariq Bashir, (supra) regarding grant of bail in non-bailable offences carrying punishment for less than 10 years as of a rule and rejection an exception, it appears that the rule was laid down by the apex Court after taking note of various difficulties faced by the under trial prisoners in Jail and the tendency of involving innocent person with guilty whose incarceration can never be reparated, and rightly so as the prime consideration before all Courts while admitting on bail a person accused of a non-bailable offence are (a) presumption of innocence in his favour; and (b) absence of sufficient material to connect him with commission of offence (Imtiaz Ahmed v. The State, PLD 1997 SC 545).
11. ' However, in cases under section 489-F, P.P.C., not only that such presumption of innocence is missing but there is sufficient material to connect an accused person with the commission of crime, for the reason that under section 118 of "The Negotiable Instruments Act" every negotiable instrument until the contrary is proved is presumed to be drawn for consideration, whereas, under section 489-F, P.P.C., presumption of dishonesty is attached with a drawer of dishonoured negotiable instrument unless he can establish, for which the burden of proof has been placed on him, that he had made arrangements with the bank to assure that the cheque would be honoured and the bank C was at fault in not honouring the cheques, and secondly, what better material could be available with the prosecution than a dishonoured cheque to connect the accused persons with the commission of the offence.
12. ' The growing tendency of issuing cheques without arranging sufficient funds to honour the instrument obviously with the intent to make some quick money by defrauding others, has destroyed the fibre of the society and created mistrust not only in the business community but the entire society and therefore, is to be viewed seriously. The incorporation of section 489-F, P.P.C. On 25-10-2002 by transforming a pure civil transaction into an offence by shifting the burden of proof from Prosecution as envisaged under section 420, P.P.C. Upon the shoulders of accused appears to be a step towards eradication of such menace.
13. ' It would, therefore, be safe to conclude that in absence of initial presumption of innocence in favour of an accused person and availability of sufficient material in the form of dishonoured instrument to connect such accused person with the commission of offence, grant of bail "as of rule" can ,by no stretch of imagination be termed to be in consonance with the principle laid down in the case of Tariq Bashir (supra) and therefore, the Court should be strict in exercise of discretion of bail to a person charged with such offence.
14. ' Coming to the amount of surety, though, there is no provision providing the quantum of bail amount in respect of offence under section 489-F, P.P.C. But keeping in view the purpose for which this section has been incorporated in the Pakistan Penal Code which obviously appears to be not only to deter issuance of cheques to defraud the creditor but also to prevent the accused persons from disappearing by jumping the bail, in my view should be in consonance with the amount of instrument. The apex Court in the case of Shmarez Khan (supra) had granted bail to a person accused of misappropriation upon deposit of the entire amount of which the accused was charged of. Likewise subsection (7) of section 5 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereinafter referred to as the "said Ordinance"), which provides speedy trial of certain offences committed in respect of Banks or connected therewith, specifies that the bail amount should not be less than the amount specified in the charge. In the circumstances, I am of the view that the bail amount in the cases of the like nature if no equivalent to the instrument should be in consonance with the dishonoured instrument.
15. ' Taking up the instant case in my opinion, since the principles for the grant of bail are totally different than its cancellation and bail once granted may not be cancelled unless it is brought on record that the accused has violated the principle laid down for the grant of bail or there are compelling circumstances or the bail granting order is void, illegal, absurd or fanciful, but not on the ground that there can be another view. Since nothing of the like nature is brought to the notice of the Court, therefore, no case for cancellation of bail is made out. However, the bail amount of Rs,200,000 for dishonoured instruments worth Rs,74,59,083 is highly disproportionate and therefore, in view of what has been discussed above, I would raise the bail amount from Rs,200,000 to Rs,74,59,083 to be furnished to the satisfaction of trial Court. In case the bail amount as directed hereinabove, is not furnished within a period of 20 days the concession of bail shall stand cancelled.