The learned counsel seeks cancellation of post-arrest bail granted by the learned Addl. Sessions Judge, Mandi Baha-ud-Din vide his order dated 25.10.2008 to Respondent No, 1 in F.I.R No, 479/2008 dated 19.09.2008 registered at Police Station City District Mandi Bahaud-Din, under Section 489-F, P.P.C.
2. According to the learned counsel for the petitioner the learned Addl. Sessions Judge, Mandi Baha-ud-Din while granting bail to Respondent No, 1 had not taken the sequence of events in a proper perspective an thus has failed to appreciate the material evidence available on the file. It is further stated that Respondent No, 1 is a contractor, who was awarded a contract for the repair works of Rohtas Fort and Respondent No, 1 subsequently sublet the same to the petitioner. The petitioner initiated the repair works and completed the project through his own as well as family resources and incurred an expenditure of Rs, 42,00,000/- for which Respondent No, 1 was under an obligation to pay the same to the petitioner. It is further contended that Respondent No, 1 failed to discharge his obligation and in this regard he entered into an agreement "Iqrar Nama" dated 02.02.2008 Annexure-A executed on the letter head of his own company duly signed by him in the presence of witnesses. According to which Respondent No, '1 fully acknowledged his obligations and liabilities towards the petitioner. In discharge of his liabilities Respondent No, 1 gave to the petitioner a Cheque No B-791813 CA-10/NBP Civil Line Branch, Jhelum for an amount of Rs, 42,00,000/-. It was also acknowledged by Respondent No, 1 that that in case of default the petitioner is open to proceed against him under the law. It is further stated that the petitioner after the given date on the cheque deposited the same in his account at the NIB Bank Ltd. Mandi Baha- ud-Din but the National Bank of Pakistan returned the said cheque through memo with the remarks that the payment has been stopped by the drawer. It is further stated that the petitioner having no option left proceeded under the law and got registered the instant case FIR No 479/2008 dated 19.09.2008 under Section 48.9-F PPC at Police Station City Mandi Baha-ud-Din against Respondent No, 1.
3. It is further urged by the learned counsel for the petitioner that keeping the above facts and circumstances of the case the conduct of the Accused/Respondent No, 1 is to be taken into consideration both prior as well as after registration of the case. In this regard he placed reliance on 2009 SCM R 174 of identical nature. In order to see the subsequent acts and conduct of Respondent No, 1 the learned counsel for the petitioner draws the attention of this Court towards Rapat No 45 dated 08.05.2008 Annexure-H lodged by Respondent No, 1 Muhammad Aslam stating therein that he along with Zafar Iqbal was proceeding towards the house of his uncle Muhammad Sharif and on the way he lost his cheque book and blank letter heads in which a few cheques and letter pads were signed by him. The learned counsel for the petitioner then averts that in June 2008 Respondent No, 1 changed his stance through a letter dated 26.06.2008 Annexure-I addressed to the Director Projects Qilla Rohtas stating therein that his cheque book and signed blank letter heads have been lost in the project area; it be inquired into and if found be returned to him and accordingly the Director Projects through his note on the said letter dated 03.07.2008 stated that on inquiry from the staff, no such papers were found by the staff. Learned counsel for the petitioner further states that Respondent No, 1, again for the third time changed his stance while filing a petition under Section 22-A Cr.P.C. before the Justice of Peace/Addl. Sessions Judge, Mandi Baha- ud-Din Annexure-J dated 30.08.2008 by distorting actual facts wherein he has alleged that on 19.02.2008 he along with Zafar Iqbal came to the house of his uncle Muhammad Sharif and during his stay there his cheque book and blank signed letter heads were stolen. The lost of the same was duly informed to the Manager Operations National Bank of Pakistan, Main Branch Jhelum and Respondent No, 1 obtained the new cheque book as well as he lodged Rapat No, 45 on 08.05.2008 at Police Station Phalia. It is further alleged in the petition by Respondent No, 1 that the petitioner Ijaz Ahmad, who is brother-in-law of Zafar Iqbal misused the Cheque No, CA-10/NBP B-791813 dated 04.08.2008 and filled an amount of Rs, 42,00,000/- personally presented the same at the Jhelum Branch for encashment; as such now he has come to the conclusion that his cheque book and letter heads had been stolen by the petitioner and Zafar Iqbal and prayed for registration of a case against them. The learned Addl. Sessions Judge, Mandi Baha-ud-Din ordered the registration of a case against the petitioner and others thereafter case FIR No, 79/2009 dated 21.02.2009 under Section 379 PPC was registered at Police Station Phalia. Subsequent to the registration of this FIR proper investigation was conducted by the police and it was found during the investigation that the complainant owe Rs, 42,00,000/- to the petitioner Ijaz Ahmad and that case FIR No, 79 was got registered by Respondent No, 1 by distorting the actual facts and found to be false and baseless and completely bereft of any facts and reality. The same has been got registered to foster the case got registered by Ijaz Ahmad against Respondent No, 1 under Section 489-F PPC and with this report the same was presented to the Court and the FIR No, 79/2009 registered against the petitioner and others was cancelled.
4. It is further contended by the. learned counsel for the petitioner that in the above sequence, it is apparent that Respondent No, 1 is creating false evidence in order to hoodwink his liabilities, the same has not been appreciated by the learned Addl. Sessions Judge and the same had been fully taken into consideration by the learned Judicial Magistrate Section 30 while rejecting the bail application of Respondent No, 1 in proper perspective vide his order dated 07.10.2008, which the learned Addl. Sessions Judge, while granting bail to Respondent No, 1 completely failed to comprehend that Respondent No, 1 has been creating a case contrary to the facts in order to avoid his obligations and to create a false and fictitious defence in his favour. The impugned order dated 25.10.2008 passed by learned Addl. Sessions Judge, has been passed without application of judicial mind, without reasoning is perverse, arbitrary and without taking into consideration the material evidence available on the record, as such, the same cannot sustain. The conduct of the accused/ Respondent No, .1 is to be taken in the proper sequence especially when he is trying to usurp a huge amount of Rs, 42,00,000/-, therefore, the impugned order 25.10.2008 be set aside and the concession of bail granted to Respondent No, 1 be withdrawn.
5.On the other hand, learned counsel for Respondent No, 1 has vehemently refuted the contentions of the learned counsel for the petitioner. It is urged that Respondent No, 1 had been approaching the local police as well as the higher hierarchy of the police for getting the registration of a case regarding lost of his cheque book and blank signed letter heads. Thereafter, Respondent No, 1 was constrained to file a petition under Section 22-A before the learned Justice of Peace/ Addl. Sessions Judge in order to get a case registered against the petitioner and others, which had been got cancelled by the petitioner in connivance with his relationship with the higher police hierarchy; as such, the petitioner was left with no alternative except to file a private complaint against the petitioner in which after recording of cursory/preliminary evidence the petitioner and others have been summoned in the private complaint filed by Respondent No, 1; as such it has now become a case of cross version and in the circumstances, when the petitioner has been summoned, bail cannot be cartelled. The petitioner has not been able to establish any ground of ,perverse, arbitrary order or misuse of the concession of bail or any repetition, which are the essential ingredients for seeking the cancellation of bail. Reliance is placed on 1992 SCM R 1286, PLD 1996 S. C. 241, 2004 SCMR 2331, and 2007 YLR 3236. It is further urged that the instant application should have been filed before the Court of first instance, the same cannot be entertained before this Court as such, the same merits dismissal out rightly. Reliance is placed on 1971 SCM R 637 and 1976 PCr.L.J.
34. In the above circumstances, this petition has no merits and it should be dismissed.
6. The learned Assistant Prosecutor General states that factual aspect of the case is that an Iqrar Nama dated 02.02.2008 was entered into by Respondent No, 1 with the petitioner admitting his obligations for the payment of Rs, 42,00,000/-. A cheque was duly issued by him on the same date.
The Rapat No, 45 lodged by Respondent No, 1 in the first instance is dated 08.05.2008, after the execution of the agreement and all the subsequent reports and series of efforts made by Respondent No, 1 are subsequent to the events which shows that the same had been manipulated.
It is also pointed out by the learned Assistant Prosecutor General that Respondent No, 1 has been throughout very reluctant in getting specimen signatures for verification by the experts. Huge amount of Rs, 42,00,000/- has been misappropriated by Respondent No, 1 and evidence is being created for justifying the same; that the cheque was issued prior to the intimation conveyed to the Manager Operations, National Bank of Pakistan regarding loss of the cheque book and other documents, which shows the malafide intention of Respondent No, 1.
7. Arguments heard, record perused.
8. It is an admitted fact that Respondent No, 1 was awarded the contract for the repair of the Rohtas Fort and he had in this regard sublet the project to the petitioner for completing the same and thereafter as alleged by the petitioner, he completed the same by incurring an expenditures of Rs, 42,00,000/-, for which as alleged by the petitioner no payment has been made to him by Respondent No,
1. In view of the same a dispute has arisen between the petitioner and Respondent No, 1 and in order to resolve the issue, it appears that an agreement in the shape of Iqrar Nama dated 02.02.2008 had been arrived at between the petitioner and Respondent No, 1 subsequent to which a Cheque No, CA-10/NBP B-791813 dated 04.08.2008 had been given to the petitioner. The same had been dishonoured on account of stoppage of payment. Therefore, the petitioner had got registered the instant case against Respondent No,
1. Subsequent event as traced by the learned counsel for the petitioner mentioned above shows that after the execution of the Iqrar Nama and issuance of the cheque, Respondent No, 1 had been very active in creating a plausible defence in order to avoid the consequences of the registration of the case by first lodging Rapat No, 45 dated 08.05.2008 wherein he had taken the stand that he had lost the cheque book and signed blank letter heads while on the way to the house of his uncle Muhammad Shard. Thereafter through letter dated 26.06.2008 addressed to the Director Project Rohtas Fort wherein it is stated that he had lost the same while working at the site of the project, which if found should be delivered to him.
Thereafter, again through petition under Section 22-A filed before the learned Justice of Peace/Addl. Sessions Judge, Mandi Baha-ud-Din, Respondent No, 1 further improved his stance and directly involved the petitioner and others for committing the theft of his cheque book and signed blank letter heads while he was spending the night in the house of his uncle Muhammad Sharif and further also that he came to know about the dishonour of the cheque through the bank manager National Bank of Pakistan as such levelled the allegation of theft against the petitioner and others.
9. It is apparent that in all the three documents Respondent No, 1 has been adopting a different version in order to improve his defence and also in a way to get the petitioner and others involved in some case to exert pressure on the petitioner. Case FIR No 79/2009 dated 21.02.2009 was duly registered against the petitioner at the instance of Respondent No, 1 but after a proper investigation it was cancelled on the ground that it was lodged by distorting the actual facts and found to be false and baseless and completely bereft of any facts and reality. On the cancellation of FIR No, 79/2009 and during pendency of this application, Respondent No, 1 maneouvered to lodge a private complaint against the petitioner and others in order to further fortify his defence. All these steps taken by Respondent No, 1 appears to have been taken with ulterior motives and malafide intention just to avoid his obligations regarding the payment of Rs, 42,00,000/- towards the petitioner.
10.On the perusal of the impugned order it appears that the learned Addl. Sessions Judge, has not been able to appreciate the stance of the petitioner and on the perusal of the operative part of the order dated 25.10.2008 it appears that the learned Addl. Sessions Judge, has only taken into consideration the stance of Respondent No, 1 while completely ignored the stance of the petitioner without giving any reasons in a very casual manner and has not given any reason for rejecting the stance of the petitioner/complainant and also without taking into account the version of the petitioner; as such, the order passed by the learned Addl. Sessions Judge, Mandi Baha-ud-Din dated 25.10.2008 is perverse and in arbitrary manner has granted bail to Respondent No, 1.
11. In view of what has been discussed above, relying upon the judgment reported as Shameel Ahmed Vs. The State (2009 SCM R 174) wherein it has been held that grant of bail to an accused in every case not hit by the prohibitory clause of Section 497(1), Cr.P.C. was not a rule of universal application, because each case had to be dealt with on its own facts and circumstances. Court vested with such discretion could not exercise the same in an arbitrary, fanciful or perverse manner, this application is allowed. The bail granted to Respondent No, 1 vide order dated 25.10.2008 passed by the learned Addl. Sessions Judge, Mandi Baha-ud-Din, is hereby withdrawn.