By means of this application, Nadeem Hameed Sheikh, the petitioner seeks post-arrest bail in case F.I.R No, 292 dated 18.9.2007, registered under Section 489-F PPC, with Police Station Margalla, District Islamabad.
2. Succinctly, the prosecution case as gleaned from the available record is that the complainant Haji Saif Ullah got lodged this F.I.R by contending that the petitioner was known to him who was owner of two companies namely Natover International Private Ltd. and Natover Leasing Private Limited. The accused purchased shares of different companies from the complainant in his office.
The accused had to deposit the price of shares in the complainant's bank account, but the complainant misappropriated the said amount and did not deposit the same. When the complainant contacted the accused, he while admitting his guilt made partial payment to him and for payment of the remaining amount of Rs,9,11,06,037/- issued Cheque No, 70034498, drawn on Habib Bank Limited, Sir Syed Road Branch, Off. Tariq Road, Karachi. The complainant deposited the said cheque in his account in Bank AlFalah, F-8, Islamabad, but ultimately the same was dishonoured due to insufficient funds, hence the accused was booked in this case.
3. The learned counsel for the petitioner has argued that the petitioner is innocent and has falsely been implicated in this case. He explains that the transaction of shares was executed with the company, the petitioner in his personal capacity has nothing to do with the alleged offence, hence the present petitioner could not be dragged in the instant case. The learned counsel further argued that the cheque was given as a surety, so the necessary ingredients to attract the provisions of 489-F PPC i,e, dishonestly issuance of cheque, repayment of a loan or fulfillment of an obligation are not available in the case in hand, therefore, no case for dishonestly issuance of cheque is made out at all against the petitioner. It is submitted that civil litigation regarding the subject matter is pending between the parties. He pointed out that the petitioner is an old man of 70 years, who is suffering from multifarious dangerous diseases, so he is entitled to the concession of bail even on these grounds. He strenuously urged that the offence does not fall within the prohibitory clause of Section 497 Cr.P.0 and even if petitioner is awarded punishment of three years which is maximum punishment provided for the alleged offence, even then he be released immediately by giving benefit of Section 382-B Cr.P.C. He added that the other Directors of the Company have not been involved. The arguments are summed up with the submission that the petitioner may be enlarged on bail.
4. Repelling the arguments of learned counsel for the petitioner, Mian Abul Rauf Advocate representing complainant has alleged that the cheque was issued dishonestly by the petitioner in his personal capacity, as the transaction was executed with him. He continued to argue that other F.I.Rs also stand registered against the petitioner. According to learned counsel the issuance of cheque is admitted. He laid great stress that the civil suit was dismissed due to non-prosecution but the same has not so far been revived. He even went on to argue that the documents were never produced before the I.0 during the course of investigation, and even otherwise same are product of fraud having dubious character. Mr. Muhammad Asif Khan, learned Federal Counsel appearing on behalf of the state adopted the arguments advanced by the learned counsel for the complainant.
5. I have considered the arguments advanced from both the sides and surveyed the record with care and caution.
6. The issuance of cheque by the petitioner to the complainant is admitted. It is observed that in such like criminal cases, the accused side usually adopt two defence versions i.e the cheque was stolen or the same was issued as a security. As in the present case, the main stress of learned counsel for the petitioner was that the cheque was only and only issued as a security. The record of trial Court is available, in which the cheque in question has been placed with the report under Section 173 Cr.P.C. The perusal of cheque in dispute transpires that nothing is mentioned in it that the same was being issued as a security. Even if it is presumed that the same was given as surety/security, even then, it places a liability upon the petitioner, who issued the same. Further the learned counsel for the petitioner has failed to explain that what was the necessity to issue the cheque as a security. An interesting point is that if a cheque is given as security and the person who has been given the same cannot present it for encashment in case of any violation, then the very purpose of issuance of cheque becomes meaningless. As regards the other contention of learned counsel that the complainant sold the shares to the company and the petitioner was not liable to pay the amount to the complainant is concerned, if the petitioner did not purchase the shares, then why he issued the cheque in question. So far as the copies of different documents referred to by the learned counsel for the petitioner !evidence concerned, suffice it to say that under the law deep appreciation of evidence is not advisable at bail the stage. A cheque of huge amount was issued by the petitioner, who .is a businessman and was fully aware of consequence of issuance of cheque, therefore, it was incumbent upon him to execute agreement mentioning that the same was being issued as a security/surety. Learned counsel for the petitioner also tried to argue that the cheque was issued under coercion, duress and undue pressure, but no report was got lodged by the petitioner in this behalf, so this contention of the petitioner appears to be after thought. The petitioner is specifically nominated in the F.I.R. Sufficient material is available on record to connect him with the commission of offence. Civil suit filed by the petitioner has already been dismissed. It is settled law by now that `the Court may refuse the bail in the offence which does not fall within the prohibitory clause of Section 497 Cr.P.C. As far as the ailment of petitioner is concerned, it has not been agitated that the petitioner is suffering from such an ailment, the treatment of which is not available in the Jail or Jail Hospital. I also do not find the petitioner to the concession of bail on the ground of old age due to heinous offence. Keeping the version of both the parties in juxtaposition, I am of the firm opinion that it is not a fit case for the grant of bail.
Consequently, the bail petition is dismissed. The record of trial Court be sent back immediately.
7. The observations made hereinabove are tentative in nature and shall not affect the case of either party on merits.