' HASNAT AHMAD KHAN, J.--- Through this petition, Muhammad Afzal, the petitioner-complainant, has sought cancellation of ed to respondent No,1 in case F.I.R. No,442 of 2008, dated 7-11-2008, registered with Police Station Rajhana, District Toba Tek Singh, in respect of an offence under section 489-F, P.P.C.
2. Briefly put, the facts, as narrated by the petitioner-complainant, are that respondent No,1 borrowed Rs,3,41,50,000 from the petitioner-complainant with a view to show sufficient amount in his account which was a condition precedent to send his (respondent No, 1 's) son abroad. On the demand for the return of the said amount, respondent No,1 issued a cheque for the said amount which on its presentation was dishonoured by the concerned bank for the reason that the relevant account had been closed. Thereafter the petitioner-complainant lodged the afore-mentioned case against respondent No, 1 . Respondent No,1 moved an application, for seeking pre-arrest bail, before the learned Sessions Judge, Toba Tek Singh, which was allowed vide order dated 16-12- 2008. Hence this petition for the cancellation of the ed by the learned Sessions Judge, Toba Tek Singh, in favour of respondent No, 1 .
3. In support of this petition, learned counsel for the petitioner-complainant has contended that respondent No,1 has bilked the petitioner-complainant to the tune of Rs,3,41,50,000, that the issuance and bouncing of the cheque in question is not denied; that the petitioner-complainant and respondent No,1 are real brothers inter se, therefore, it cannot be said that respondent No,1 has been involved in this case due to the mala fides of the petitioner-complainant; that while granting pre-arrest bail to respondent No,1, the learned Sessions Judge resorted to deeper appreciation of the evidence, which is not warranted at the bail stage; that the prosecution is equipped with sufficient documentary evidence to saddle the respondent with the alleged crime; that the mala fide and guilty consciousness of respondent No,1 is reflected from the fact that after registration of case he submitted an application to the police regarding the theft of the cheque in question which after due investigation by the police was found to be false; that while discarding the plea of respondent No,1 regarding the theft of cheque in question, the police concluded that the two cheques which were issued prior to and after the issuance of the cheque in question, by the respondent, were duly encashed and that during the investigation the Manager of the concerned Bank appeared before the investigating officer and confirmed that the cheque in question did bear the genuine signatures of respondent No,l.
4. Conversely, learned counsel appearing on behalf of respondent No,1 has controverted the arguments put forth by the learned counsel for the petitioner-complainant by submitting that admittedly there is no written proof of the fact that the petitioner-complainant ever handed over such a huge amount to respondent No,1, therefore, there was no occasion for the respondent to issue the cheque in question in favour of the petitioner; that the relevant account of the respondent had been closed in the year, 2005, therefore, the prosecution's version qua the issuance of the post-dated cheque, which according to the complainant was to be encashed in the year, 2008, is not believable; that, in fact, the petitioner-complainant and respondent No,1 were running a joint business and they were holding joint account out of which the petitioner-complainant malafidely drew an amount of 89,000$ from the joint account on 15-9-2001, a fact which can be confirmed from the certificate dated 23-5-2009 issued by the Manager/Officer, United Bank Limited, Toba Tek Singh; that the petitioner-complainant malafidely converted the civil litigation into a criminal one.
In support of the last argument learned counsel has produced a copy of order, dated 25-6-2008, passed by the learned Senior Civil Judge, Toba Tek Sindh, according to which the defendants had been proceeded against ex parte in a suit filed by respondent No,
1. Learned counsel has further argued that during the pendency of the civil litigation the matter between both the brothers was referred to an arbitrator, who gave his award on 26-8-2008, wherein the factum of issuance of the cheque and dishonouring of the same was never mentioned; that an agreement has been executed between the parties on 19-5-2009 wherein both the parties have agreed to settle their disputes amicably; that the said agreement was an off-shoot of F.I.R. No,211 of 2009, dated 13-5- 2009 lodged by respondent No,1 against the petitioner-complainant; that the petitioner- complainant was released on bail in the said case on the basis of a conceding statement made by respondent No,1, a fact which shows the bona fide of respondent No,1 and that respondent No,1 is ready to settle the matter with the petitioner-complainant on oath.
5. Learned Additional Prosecutor General, while adopting the arguments put forth by the learned counsel for the petitioner-complainant, has supported this petition.
6. Heard, Record perused.
7. Before proceeding further I would like to observe here that certain facts of this case are admitted on both the ends, for instance, it is not denied by the respondent that cheque in question pertained to the account number issued to him. Similarly, it is not denied that due to the closure of the said account the cheque in question was bounced. However, it is the case of the respondent that the cheque in question was stolen by the petitioner. The said plea is based on an application lodged by the respondent with Police Station Rajana, whereby the, respondent claimed that a leaf of cheque No,1269586 pertaining to his (respondent's) account had been stolen. On the basis of the said application the matter was inquired into by the police. After a thorough inquiry it was held- that the cheque in question was never stolen, rather it was issued by the respondent in favour of the petitioner. It would be relevant to point out here that the application claiming the theft of the cheque, in question, was moved by the respondent after the registration of the case in hand. After returning the said findings, Rapat No,14 dated 5th of December, 2008, was duly recorded in the said police station. In the said report it was further observed by the police that two cheques, which were issued by the respondent prior to and after the issuance of the cheque in question, were duly encashed.
8. Insofar as the respondent's contention to overcome delay in lodging the F.I.R. Is concerned, suffice it to observe that though according to the petitioner/complainant the cheque in question was delivered to him after obtaining the disputed amount on loan three years, before lodging the F.I.R., but the respondent, according to the complainant, had issued a post-dated cheque. Dated 2- 9-2008, which was presented before the Bank concerned on 18-9-2008. However, the same was dishonoured on' account of the closure of respondent's account. The petitioner is in possession of the original cheque as well as the dishonouring slip.
9. As far as the respondent's plea regarding the pendency of civil litigation and referring of the matter to the. Arbitrator is concerned, according to the respondent himself, that litigation has nothing to do with the cheque in question. It is true that in a case registered against the petitioner at the instance of the complainant, the matter was resolved between the two brothers, but the agreement whereby the matter was resolved between the parties is not relatable to the issue involved in this case.
10. Insofar as drawing an amount of 89,000 U.S. Dollars by the petitioner from a joint account of both the brothers is concerned, the respondent has failed to establish any nexus of the said matter with instant case.
11. During the investigation the Manager of the Bank concerned appeared before the Investigating Officer and stated that the cheque in question indeed bore the signatures of the complainant.
Considering the said statement, coupled with the documentary evidence, which is in possession of the petitioner, tentatively speaking, it cannot be observed at this stage that no offence is made out against the respondent
12. It is true that principles for grant of bail and those for cancellation of bail are quite different but it is equally true that when ing order is found to be patently illegal and against the facts of the case, this Court has ample powers to cancel the same. In this case I have found that extraordinary relief of pre-arrest bail has been granted in favour of the respondent, who had bilked the petitioner' to the tune of a huge amount of Rs,3,41,50,000, on flimsy and airy fairy grounds. While granting the pre-arrest bail the learned Additional Sessions Judge delved very deep into the factual controversy and discussed evidentiary value of the documents in question in a very detailed manner, which was not warranted at the bail stage.
13. While observing that the cheque in question lore three different writings on it, the learned Additional Sessions Judge failed to appreciate that the said cheque was duly signed by the respondent who never claimed that the signatures had been forged by the petitioner. The front side of the cheque in question was signed twice by its executant due to an over-cutting of the name of the petitioner/holder of the cheque. While deciding the pre-arrest bail the learned Additional Sessions Judge failed to appreciate the difference between the considerations for pre- arrest' bail and those for after-arrest bail, and without holding that the case in question had been registered against the respondent due to the mala fides of the police or the complainant, which is a pre-condition for, grant of extraordinary relief of pre-arrest bail, the learned Additional Sessions Judge allowed pre-arrest bail to the respondent.
14. The law laid down by the Honourable Supreme Court on the subject of pre-arrest bail was also overlooked by the learned Additional Sessions Judge while granting pre-arrest bail to the respondent. In the cases which involve possible recovery of bilked/swindled amount, stolen/looted property or other incriminating material, the pre-arrest bail is rarely granted to accused involved in such like cases. Reliance in this regard is placed on the cases of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 , Zia-ul-Hassan v. The State PLD 1984 SC 192, Masood Ahmad alias Muhammad Masood v. The State 2006 SCM R 933 and Riaz Ahmed v. The State 2009 SCM R 725.
15. For that which has been stated above, I find that the ing order is patently illegal, based on fanciful and airy fairy reasons and therefore, not sustainable, consequently the application in hand is accepted and the pre-arrest ed in favour of respondent No,1 stands cancelled.