The petitioner, Raja Mumtaz Hussain Arif s/o Ghulam Nabi, seeks post arrest bail in case FIR NO.515 dated 12.11.2008 u/S. 489-F PPC, registered with Police station Kohsar, Islamabad.
2. Briefly, the allegation against the petitioner is that he was having business relations with the complainant. The complainant entered into an agreement to sell with the petitioner with regard to a Plot situated at Defence Housing scheme Phase-I, Malir cantt, Karachi. The petitioner advanced an amount of Rs,30,00,000/- as earnest money through Cheque No, 2450906 dated 14.06.2005 drawn on Union Bank, Awan Arcade, Islamabad. Similarly, the petitioner issued a cheque Bearing No, 4924364 dated 29.07.2005 for an amount of Rs,10,00,000/- in respect of amount which he borrowed from the complainant. Both the cheques were presented for encashment but the same were dishonoured vide memorandum dated 22.11.2005 & 15.12.2005 respectively. The petitioner issued both the cheques knowingly and to defraud the complainant and as such, has committed offence u/S. 489-F PPC. The petitioner failed to pay the earnest money through the afore-referred cheques, hence the agreement to sell, mentioned above, was cancelled. Although the agreement with regard to which, cheque was issued as earnest money, was cancelled, but the petitioner while committing fraud and misrepresentation through afore-referred documents sold out the said plot to one Syed Amjad Mahboob inspite of the fact that he was not competent to alienate the same.
3. The petitioner applied for bailafter arrest before the learned Magistrate, 1st Class, Islamabad, but his bail application was dismissed vide order dated 03.12.2008. The petitioner approached the court of learned ASJ, Islamabad for the grant of post arrest bail, but his application was dismissed vide impugned order dated 19.03.2009.
4. Learned counsel for the petitioner inter alia contends that petitioner is an innocent person and has falsely been involved in the above referred case. The petitioner is behind the bars since a considerable period and his liberty was curtailed for nothing but for ulterior motives. The offence applied in the FIR is not made out, as necessary ingredients for registration of case u/S. 489-F PPC are missing from the prosecution case. The offence does not fall within the ambit of subsection (2) of Section 497 cr.P.c. and the petitioner is entitled to the concession of post arrest bail.
5. on the other hand, learned Federal Counsel assisted by the learned counsel for the complainant and I.O. has vehemently opposed the bail petition on the grounds that the execution of both the cheques is admitted by the petitioner. The petitioner has committed heinous offences like fraud, forgery and cheating and heavy amount is involved in the instant case, hence he is not entitled to be released on bail.
6. Arguments heard. Record perused.
7. The petitioner purchased Plot NO.9 measuring 500-sq.yds situated at Defence Housing Scheme No, 1, Malir cantt. Karachi from the complainant and issued Cheque No, 2450906 dated 14.06.2005 for an amount of Rs,30,00,000/- as earnest money in respect of said plot. Subsequently, the complainant himself revoked/cancelled the agreement to sell and this fact has been admitted by him in the instant FIR, as well as in the written statement filed by the complainant before the Hon'ble Sindh High Court at Karachi in Suit No,1447/2006 titled "Syed Amjad Mehboob Vs. Raja Mumtaz Hussain Arif & Others, the stance taken by the complainant in Paragraph No, 5 of the written statement is as under:-- "That the Answering Defendant had entered into a deal with the Defendant No,1 with respect of the Property subject matter of the suit and had received Cheque No, PLS 2450906 dated 14.06:2005 of Rs, 3,000,000/- (Rupees Three Million only) drawn on Union Bank Limited, Awan Arcade Branch, Islamabad and which was given towards the payment of sale consideration. The cheque was dishonoured on presentation. The Answering Defendant confronted the Defendant No, 1 with the situation, who returned the original documents as well as the original Sub General Attorney dated 09.05.2005 to the Answering Defendant and repudiated the deal".
There is also an endorsement on the back side of Cheque No, 2450906 dated 14.06.2005, which'is as under:-- "Payment for plot No,9, DHS, Phase-I, Malir Cantt. Karachi".
8. AS far as' Cheque No,4924364 dated 29.07.2005 for an amount of Rs,10,00,000/- is concerned, the same was issued for the purposes of opening a new Branch of the ongoing business concern (M/s Fauji Trading Corporation) in Hyderabad. There is a specific note on the back of the cheque in the following words:- "Please credit it in my account of M/s Fauji Trading Corporation"
9. Cheque bearing No,2450906 for an amount of Rs,30,00,000/- was ostensibly issued on 14.06.2005, while Cheque No 4924364 for an amount of Rs,10,00,000/- was allegedly issued on 29.07.2005, but both the cheques were presented for encashment on 15.12.2005 & 22.11.2005 respectively. The complainant kept quite almost for three years and did not lodge any FIR against the petitioner. The inordinate delay in lodging the FIR has not been explained by the complainant, which speaks about the malafides on part of prosecution. Moreover, Cheque No, 2450906 issued on 14-06-05 was presented on 15-12-05 after a period of six month, generally speaking, a cheque presented more than six months after the ostensible date of its issue, is considered a stale one.
Period of six month was allowed for presentation of cheques according to the practice of Banks, which was not followed in the instant case..
8. Furthermore Cheque No, 2450906 dated 14.06.2006 for an amount of Rs,30,00,000/- was issued for payment of earnest money regarding Plot No,9 measuring 500-sq.yds situated at Defence Housing Scheme Phase-I, Malir cantt. Karachi, but subsequently, the deal could not be matured and the agreement to sell was canceled, hence there was no question of payment of Rs,30,00,000/- to the complainant. There is also a specific endorsement on the back side of the cheque that it was issued in lieu of Plot No, 9 situated at. Defence Housing Scheme Phase-I, Malir Cantt. Karachi, since this property was never, transferred in favour of the petitioner, hence there was no question of payment of said amount.
9. As far as Cheque No, 4924364 dated 29.07.2005 for an amount of Rs,10,00,000/- is concerned, there, is also an endorsement on the back side of the cheque that the same shall be credited in the account of the petitioner (M/s Fauji Trading corporation). A partnership deed between the petitioner and the complainant is available on record, which was duly registered with the Registrar of Firms for Karachi. This Partnership Deed is regarding the running of business under the name and style of "M/s Fauji Trading Corporation", which was to be carried out at Plot No,S-5, Shop No,1 & 2, Cantt Bazar, Malir cantt, Karachi. There is a strong presumption that cheque for an amount of Rs,10,00,000/- was issued for opening of a new Branch at Hyderabad. However, this question requires further probe and investigation, which of course, will be done at the time of trial and it will be determined by the learned trial Court, whether any amount was due towards the petitioner or not?
11. The petitioner was arrested on 13.11.2008. He was sent to judicial lock up on 15.11.2008 and since then, he is continuously behind the bars. The trial has not yet been concluded. The petitioner is no more required for further investigation; under theses circumstances, he cannot be kept behind the bars for an indefinite period, especially when, there is no possibility of conclusion of trial in the near future.
12. The offence u/S. 489-F PPC provides maximum punishment of three years; hence not covered under the prohibitory clause of Section 497 Cr.P.C. There is no categorization of offence u/S. 489-F in. the Pakistan Penal Code. Many other offences have been categorized in the Pakistan Penal Code and other laws like Control of Narcotics Substances Act, 1997. In Pakistan Penal Code, injury cases are divided into different categories, there is a separate punishment for each kind of injury proportionate to its seriousness. Similarly, different sentences are proposed according to the quantity of the recovered narcotics substances in CNSA. The intention of the legislature is clear that no such classification was made for an offence u/S. 489-F PPC regarding the amount of Cheque, it does not make any difference whether the Cheque is for a smaller amount or for a huge amount. If a Cheque of any amount is dishonoured on its presentation, the mischief of Section 489-F PPC is attracted and it is an offence not falling within the prohibitory clause.
13. For the reasons stated above, the petition is allowed and the petitioner is admitted to post arrest bail, subject to his furnishing bail bonds in the sum of Rs,2,00,000/-, with two sureties in the like amount, to the satisfaction of learned trial Court.