Petitioner Muhammad Shahid by way of the instant petition has sought for post-arrest bail in case FIR No, 29 registered under Sections 420/468/471 PPC with Police Station Civil Lines, District Gujranwala on 14.01.2010. Later on the police is stated to have added the offence under Section 489-F PPC in the same.
2. Briefly the allegation against him as per the FIR is that he had business relation with the complainant and they had some settlement in respect of the due amount Rs, 30,11,200/- upon him.
He on 28.07.2009, had issued a cheque drawn on National Bank of Pakistan, Railway Headquarters, Lahore Branch in respect of that amount in his (complainant) name. About two days prior to 29.07.2009, he requested him not to present the cheque to the bank and promised to pay him the entire amount in cash soon. He, thereafter, had been putting him off. The complainant when presented the said cheque to the bank concerned for encashment, the same was dishonoured on 03.12.2009. It also transpired that the cheque infact belonged to the account of some one else and not in his name and he in this way has also defrauded him (complainant) with malafide intention.
3. After hearing the learned counsel for the parties and perusing the record, I find that the prosecution allegation, if at all may be taken true as it is, the same ex-facie attracts an offence under Sections 420/489-F PPC and not under Sections 468 & 471 PPC. It is because of the fact that dishonouring of the cheque is another matter, whereas the issuance of cheque in respect of the account of some one else on the face of things the other and the same may amount to defrauding the complainant or in other words cheating him. Such an act or offence is covered under the provision of Section 420 PPC. The offence under the same is bailable.
4. However, there hardly seems any forgery in the issuance of cheque, if at all, it may be relating to the account of some one else. It is because of the fact that it has not been shown that the account of that other person did not exist. It rather, comes out that the cheque in question related to an existing account, even though, in the name of someone else. So, it is yet to be seen that if in such circumstances the offence of forgery can be attracted against him attributed to him. His case, therefore, is one of further inquiry into his guilt and so, is covered under sub-section (2) of Section 497 Cr.P.C.
5. The fact also remains that the offence under Section 489-F PPC is covered within the prohibitory clause of Section 497 (1) Cr.P.C. The grant of bail in such like cases is a rule and refusal an exception. In this regard reference can be made to the case of Tariq Bashir and 5 others Vs The State (PLD 1995 SC 34).
6. He is stated to be behind the bars for the last more than 2 months and a previous non-convict, which has not been controverted by the other side.
7. However, it is necessary to mention here that the learned counsel for Respondent No, 2 has pointed out that he is involved in another similar case of Police Station, Shadman, Lahore, while his learned counsel has stated that the said case stood cancelled. Learned counsel for Respondent No, 2 has not controverted the same.
8. I may also mention here that if at all for the sake of arguments, it may be taken that the offence under Section 468/471 is there, but here at the moment limited question of grant or otherwise of bail is being dealt with. The offence under Section 471 PPC is bailable, while the one under Section 468 PPC is not covered with the prohibition contained in Section 497 (1) Cr.P.C. The position of such offence, thus, would also be the same as has been indicated above.
His (petitioner) learned counsel has relied upon the cases Razi Ahsan vs. The State & another (PLD 2008 Karachi 212), Kashif Khan vs. he State (2009 P.Cr.L.J. 1418 Lahore), Muhammad Asim Siddiqui vs. The State (2007 MLD 1234 Lahore) and Iftikhar Akbar vs. The State (2008 MID 159 Lahore). These cases support his view point as regards the plea of bail.
As against the same, the learned counsel for Respondent No, 2 has referred to the case of Allah Jawaya vs. The State (2006 YLR 1105). Saman Imtiaz vs. The State (2009 P.Cr.L.J 805 Lahore), Muhammad Ayyub vs. The State (2007 YLR 3095 Lahore) and Jehan Khan vs. The State (PLD 2006 Lahore 302).
9. It is well settled proposition in criminal administration of justice that each criminal case is to be adjudged in the background of it's own facts and circumstances and the facts of the two criminal cases seldom co-incide. I, thus without dilating any further in respect of such matter, find that in the above indicated circumstances of his (petitioner) case, these esteemed authorities are not much applicable to the same being distinguishable on facts and circumstances that of him. In these circumstances of the case, L have been persuaded to hold that he has succeeded to make out a case for post-arrest bail.
10.I, therefore, accept this petition and admit him to bail, subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000/- (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.
11. It is, however, clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on any body's case at any subsequent stage. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.