1. NISAR MUHAMMAD SHAIKH, J.---The applicant Abdul Zahoor Khan has approached this Court for pre-arrest bail after his earlier application for the same relief was rejected vide order dated 31-5- 2010 passed by learned IIIrd Additional Sessions Judge, Karachi South, in connection with Crime No, 361 of 2010 registered at Police Station Kharadar Karachi, under sections 420, 489-F, 34, P.P.C.
2. The F.I.R. in the above case was lodged by complainant Muhammad Arshad on 7-5-2010, the contents of which are as under:-- "I reside at above address along with my family, and am retired Commander from Pakistan Navy.
2. And I met Bashir son of Gulab Khan and Abdul Zahoor Khan son of Abdul Waris Khan, through a close friend of mine. They told me that they run a mineral business which is profitable business, if I want to join them I can. So, in the month of January 2009, I gave them 20 lac Rupees of my savings.
3. I noticed within few months that they being dishonest in the business, so I told them to give me my money back and 1 do not want to do business with you. And they replied, "our total business would suffer if we take your money out of it, so we give you a written agreement that we will be giving you a monthly profit of one lac fifteen thousand on your invested money, and as per agreement give you advance cheques of the monthly profit, and we also give you a cheque of your given amount, if you want, you can encash your amount from our account after August 2009." So, I took their given cheque, bearing No,1556289 amounting 20 Lac Rupees. After that neither they gave me the profit nor were they ready to give me my money back. Thereafter, I deposited their given cheque in my account, which was bounced due to insufficient amount from their (Muhammad Bashir son of Gulab Khan and Abdul Zahoor son of Abdul Waris Khan) account bearing No,0003948-0001 of Bank Islami Pakistan (Pvt.) Ltd. Jodia Bazar, Kharadar. Therefore, I came to report and my claim is against the above accused persons for obtaining my 20 Lac Rupees through false hopes and for giving me the cheque on my persuasion and for cheque being bounced due to insufficient amount in their account.
4. ' I report it. I clarify that the cheque given to me by them is also referred to in the agreement that I can take back money on one month notice. So, informed (them) through notice in previous month of August. After not getting paid, deposited the said cheque in their account that bounced.
5. Deposited on 27-3-2010 but was bounced."
6. 3.After registration of the, above case, co-accused Muhammad Bashir was arrested and on completion of investigation, he was sent up vide charge sheet No,264 dated 10-6-2010 while the present applicant/accused Abdul Zahoor Khan was shown to be on interim bail, (granted by this Court on 7-6-2010).
7. 4.Learned counsel for the applicant/accused Abdul Zahoor Khan, relying upon the cases reported as 2010 SCMR 64, 2009 SCMR 1488, PLD 2009 SC 427, 2009 YLR 2178, PLD 2008 Karachi 212 and 2007 PCr.LJ 1064, argued that neither the applicant issued the cheque dishonestly nor he was liable to repay the amount in question as he was not under any obligation towards the complainant. He argued that on the frequent demand of the profit and the actual amount invested by the complainant, the agreement between the parties was revised on 27-5-2010 and accused Bashir agreed to pass on a fixed monthly profit of Rs,1,15,000 to the complainant on a condition that the complainant would keep his investment intact in the business for one year, and as per the demand of the complainant he was also given security cheque of Rs,2 millions but the same was neither a pre-requisite for the cheque to be encashed nor it was the account being operated by the applicant for all practical purposes and even no date was mentioned in such cheque as the same was given to the complainant as a security for one year contract. He also argued that 17-8-2009 the complainant malafidely deposited and attempted to encash the cheque of Rs,20 lacs in order to get it bounced from the bank without prior notice to the accused persons for re-payment of the liability or obligation,' but it was thereafter that the complainant served a notice dated 18-8-2009 to accused Bashir for return of his amount but nothing was claimed in such notice from the applicant. He also argued that the complainant in his earlier F.I.R. No,299 of 2009 lodged by him on 26-8-2009 at Police Station Risala, under section 489-F, P.P.C., had claimed an amount of Rs,3,30,000 from accused Bashir and thereafter another F.I.R. No,265 of 2010 was also lodged by the complainant on 11-3-2010 at Police Station Ferozabad, under section 489-F, P.P.C. whereby also, he claimed the amount from accused Bashir and not the applicant. He also argued that when the complainant failed to recover his amount even after the arrest of accused Bashir, then he started threatening the applicant for return of the amount in question and in order to involve the applicant, he deposited the same cheque again in the bank on 27-3-2010 and got it bounced with ulterior motives to make out a fresh case against the present applicant, though no such notice was given to the accused persons and on the contrary he served them a legal notice dated 11-4-2010 for performance of their legal obligation. Learned counsel for the applicant also argued that since the case is based on documents which need to be verified through evidence, therefore, it is a case of further enquiry entitling the applicant for grant of bail, specially when the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C.
5. On the other hand, learned Assistant Prosecutor-General assisted by *learned counsel for the complainant, while relying upon the cases reported as 2009 SCMR 174, 2009 PCr.LJ 1140, PLD 2009 (Lahore) 401, 2008 MLD 343 and 1030, contended that the copy of notice dated 18-8-2009 issued by the complainant to the accused, which has been attached with the bail application of applicant, itself shows the reference of earlier notice dated 4-8-2009 issued by the complainant for return of his amount and when the accused persons failed to pay the amount of the complainant then he presented the cheque No,1556289 dated 15-8-2009 jointly issued by the accused persons, before the concerned bank but the same was dishonoured on 17-8-2009 for insufficient funds and next day the complainant issued notice dated 18-8-2009 and then also requested the accused persons for return of his amount but they mala fidely and dishonestly continued their cheating with the complainant while keeping him on false hopes and ultimately the complainant again approached the bank but again the cheque in question was bounced on 27-3-2010 for the same reason, therefore, the complainant served a legal notice dated 11-4-2010 to both the accused but they neither paid the amount to the complainant nor replied to his legal notice therefore, the complainant finding no other way, lodged the present F.I.R. against them. He also argued that there was no question of mala fides of ulterior motives on the part of the complainant as he did not lodge F.I.R. against accused persons when the cheque was bounced firstly on 17-8-2009 for insufficient funds and it was in good faith that the complainant had been approaching and demanding fr return of his amount instead of lodging the F.I.R. or taking any other action but the accused persons mala fidely and dishonestly avoided payment and cheated the complainant by issuing false cheque, therefor he ultimately registered this case when the cheque in question was again bounced due to insufficient funds. He, therefore, contended that the applicant, in view of his own conduct, is not entitled: for the extraordinary relief of pre-arrest bail as he has usurped the life savings of the complainant and has deprived him of a huge amount. through the co-accused Bashir against whom the F.I.Rs, Nos.299 of 2009 and 265 of 2010 were already registered in connection with other cheques relating to his own account.
8. 6.I have considered the above submissions and petused relevant record and also gone through the authorities as relied upon by learned counsel for the parties. In the case reported as Idress Ahmed v. Zafar Ali and others (2010 SCMR 64), it was observed at para-7 of the Judgment that an in-depth scrutiny of the entire evidence is not required in suchlike cases but it is to be kept in mind that no decision can be made in vacuum and a cursory glance of the evidence would be quite inevitable to see as to whether the case was registered with mala fides and ulterior motives or a prima facie case connecting petitioner with commission of alleged offence is made out and thereafter it can be decided as to whether concession of pre-arrest bail can be extended in their favour or otherwise? In the case of Rana Muhammad Arshad v. Muhammad Rafiq and another (PLD 2009 SC 427) at para 15 of judgment, it was observed that it had been repeatedly held by superior Courts that no Court would have any power to grant pre-arrest bail unless all conditions specified for allowing bail before arrest, especially the condition regarding mala fides, were proved.
9. Whereas in the case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) it was observed at Pares 8 of the order that Courts in such-like case where offence falls within non- prohibitory clause, consider favourably by granting bail as a right but decline to do so in exceptional cases and as far as exceptional circumstances are concerned, those are to be taken into consideration depending. upon each case. While in the case of Shameel Ahmed v. The State (2009 SCMR 174), it was observed at para 4 of the order that it is not 'a rule of universal application, that the bail should always be granted in cases not falling within the domain of prohibitory clause of proviso to section 497 Cr.P.C. as each case has to be seen through its own facts and circumstances.
10. 7.It is an admitted fact that a huge amount of Rs,2 millions was invested by complainant Muhammad Arshad after his retirement, in the joint business with the accused persons including the applicant Abdul Zahoor being one of the partners in such business. It is also an admitted position that on the demand of the complainant he was subsequently separated from such business and the cheque of Rs,2 millions with joint signatures of both the accused, issued from their joint account, was given to the complainant. It is also not disputed that when such cheque.was presented by complainant before the concerned bank on 17-8-2009 and 27-3-2010 respectively, the same was bounced or dishonoured for the reason of insufficient funds There is also no denial that such legal notice dated 11-4-2010 was served upon the accused persons who neither replied the same nor made due payment to the complainant.
11. 8.On the contrary, the applicant Zahoor Khan appears to have tried to create a new defence contending in his bail application that he himself is an aggrieved person and he himself has lost a huge amount of Rs,7.5 millions at the hands of accused Bashir and the complainant. Thus, the applicant seems to have tried to shift the entire liability/responsibility upon co-accused Bashir but, the applicant has no where shown if he has filed any complaint against co-accused Bashir or even separated his partnership in the business with co-accused. Such conduct of the applicant also supports the contention of complainant in respect of alleged cheating, dishonesty etc. on the part of applicant and no mala fides and others on the part of complainant and the same, however, disentitles applicant of the extraordinary relief of pre-arrest bail or any concession thereof and therefore, his application for pre-arrest bail is dismissed.
12. ' The above observations being tentative in nature, shall not be taken to affect the merits of the case.