Through the instant petition, the petitioner seeks pre-arrest bail in case FIR No,44/2009, dated 31.01.2009 under Section 489-F PPC registered at Police Station Model Town, Lahore.
2. Briefly stated facts as narrated in the FIR are that the petitioner issued a cheque Bearing No, 098061 valuing Rs,8,00,000/- in favour of complainant for re-payment towards some transaction pertaining to a car but letter on the said cheque was dishonored.
3. Learned counsel for the petitioner argued that the petitioner has wrongly been entangled in this false and frivolous case with malafide intention and ulterior motives of the complainant in connivance of the police. In fact the same complainant earlier got registered three FIRs bearing Nos,49/2008, 50/2008 and 51/2008 under Section 489-F PPC Police Station Model Town, Lahore against the husband of the petitioner namely Mustansar Yousaf Sukhera but latter on, Rai Zameer DSP CIA and Ejaz Dow, DSP CIA Model Town, Lahore adopted coercive measures asking the petitioner to issue open cheques from her account otherwise her husband would have to suffer and would be bumped off in a fake police encounter. The above mentioned cheques have been taken from the petition under coercion and the said cheques were never issued in the name of the complainant. The said DSPs handed over two cheques to the complainant and in this regard, the complainant sworn an affidavit before the Illaqa Magistrate and expressed no objection if bails is granted to the petitioner's husband and the post arrest bail to Mustansar Yousaf Sukhera, husband of the petitioner was allowed. The petitioner is a household lady having attacking baby in her lap and offence in view of the latest amendment in the light of Women Protection Act is bailable. The complainant has failed to bring on record the original cheques.
4. The learned D.P.G assisted by learned counsel for the complainant opposed the bail application contending that the petitioner is nominated in the FIR with specific role of issuing the cheque. The execution of the impugne cheque and being dishonoured by the concerned bank is not denied by the petitioner. A bank certificate in this regard has also been placed on the record. PWs in their statement under Section 161 Cr.P.C. have also corroborated the version of the complainant. The petitioner has not joined the investigation of the case.
5. Heard. Record perused.
6. Admittedly, one cheque was issued on 15.01.2009 while the other on 16.01.2009 pertaining to M.C.B Shadman Colony Branch, Lahore. The complainant has failed to produce the copy of original cheque despite clear-cut direction by the I.O. vide Zimni No,1 dated 18.02.2009. The statement of Mussaddaq Hussain, Manager H.B.L which was recorded on 05.03.2009 is not a corroborative piece of evidence to strengthen the case of the prosecution, however, the statement of Manager M.C.B. can be fruitful for the prosecution. On 14.04.2009 vide Zimni No,8, the complainant was again directed to produce the original cheque but she has failed to do so. The petitioner is a lady and as such her case is covered under the Women Protection Act VI of 2006, entitling her for pre-arrest bail. The question of malafide usually is raised where the accused in the garb of bail before arrest wanted to avoid investigation and also wanted to avoid the recovery but in the present case there is no question of recovery of a cheque in dispute as the same was already with the prosecution.
Just for the purpose of sending accused to jail without any further investigation, bail, before arrest could not be refused when no further investigation is to be made. Bail before arrest could not be refused when no recovery of amount under the cheque is yet to be made. Question of dishonest issuance of cheque and its dishonest dishonoring could not be determined at bail stage. The same would be determined at the time of trial. Though the offence is not bail able yet this Court cannot ignore the fact that the offence does not fall within prohibitory clause of Section-497 Cr.P.0 and in the absence of exceptional circumstances bail before arrest could even be claimed as of right. The petitioner has also joined the investigation and such she is no more required for the purpose of investigation.
7. In this view of the matter, the instant petition is accepted and ad-interim pre-arrest bail already granted to the petitioner by this Court vide order dated 26.05.2009, is hereby .confirmed subject to her furnishing bail bond in the sum of Rs,1,00,000/- (rupees one Lac) with one surety in the like amount to the satisfaction of learned trial Court.