1. TUFAIL H. EBRAHIM, J.--Applicant/accused is involved in case Crime No, 339 of 2010 registered at Police Station Mithadar, for the offence punishable under section 489-F, P.P.C. was granted ad interim bail before arrest by this Court vide order dated 6-10-2010.
2. ' The facts of the prosecution case according to F.I.R. lodged on 9-9-2010 by complainant Muhammad Intikhabuddin, are .reproduced as under:-- "That the complainant is lawful attorney of Mr. Fayyaz Ahmed Khan son of Subedar Khan, holding CNIC No,42101-4837443-1, resident of R-471, sector 7-D/2, Gulshane-Farooq North Karachi, Karachi, now at Japan, vide 'Power of Attorney executed on 13-3-2010 (copy enclosed). That the accused namely Ammanullah Khan son of Subedar Khan had taken loan amounting Rs,39,00,000 (Thirty nine lac only) in cash from Mr. Fayyaz Ahmed Khan son of Subedar Khan. The accused also executed an aftidavit/iqrarnama dated 16 July, 2009 (copy enclosed herewith) for the purpose of return of loan amount. The accused issued Four Post dated cheques for the amount of Rs,39,00,000 and executed memo of undertaking dated 13-3-2010 (copy enclosed herewith), details of cheques issued by the accused are as follows.
3. Cheque No, Dated Amount 3366515 1-9-2010 Rs .10,00,000 3366516 1-12-2010 Rs, 10,00,000 3366517 1-3-2011 Rs .10,00,000 3366519 1-6-2011 Rs .9,00,000 ' That on maturity of period of cheques mentioned above the complainant in the capacity of attorney of Mr. Fayyaz Ahmed Khan .son of Subedar Khan presented the said cheques for encashment before MCB Bank Ltd., Main Branch, Karachi, Adamjee House I.I. Chundrigar Karachi on 2-9-2010, which were dishonoured on the ground of insufficient funds vide bank receipt as enclosed herewith. The accused has dishonestly, fraudulently and for the purpose of deceiving Mr. Fayyaz Ahmed Khan son of Subedar Khan has delivered/issued the above said cheques which have been dishounoured and as such Mr. Fayyaz Ahmed Khan sustained/caused harm and damage in his mind and the property. Therefore aforesaid act on the part of the accused constitutes offence under sections 415. and 489F of P.P.C. It is therefore requested to register FIR. against the aforesaid accused."
4. ' Learned counsel for the applicant/accused has contended that the applicant accused has been falsely implicated in the F.I.R. as there is some dispute between the real brothers over some plots and as such the dispute is of civil nature. Per learned counsel the F.I.R. has been lodged by an attorney who has no authority under the law to lodge an F.I.R. Per learned counsel the Iqrarnama is a forged document and has not been signed by any witnesses. Per learned counsel the cheques had been issued in good faith and as a security' for the sale of some plots purchased by the applicant/accused for the complainant and it was mutually agreed that the cheques would not be presented for encashment until the applicant/accused was able to sell the said plots. Per learned counsel the attorney in his own right has no concern with the issuance of the said cheques and has lodged the F.I.R. for causing humiliation and harassment to the real brother of the complainant and the criminal prosecution has been lodged to blackmail the applicant/accused. Per learned counsel the F.I.R. has been lodged after delay of seven days without any explanation. Per learned counsel the offence under section 489-F, Cr.P.C. is punishable for three years and does not fall within the prohibitory clause of section 497, Cr.P.C. and therefore the bail should be granted on this ground alone. Per learned counsel the case is based on documentary evidence and there is no probability of the applicant/ accused tampering with the evidence. The learned counsel for the applicant has relied on the following case laws:--
(1) Case of Tariq Bashir and 5 others v. The State, reported in PLD 1995 SC 34, (2) Case of Muhammad Mukhtiar v. Sajjad Hussain and 2 others, reported in 2004 YLR 2227, (3) Case of Bakhtiar v. The State, reported in 2004 PCr.LJ 343, (4) Case of Lt. Col. (Ret) Tariq Latif v. Mst. Jamila Sultana and another reported in 2006 PCr.LJ 476, (5) Case of Rana, Ehsan v. The State, reported in 2004 YLR 2675, (6) Case of Tariq Mehmood v. The State, reported in 2007 YLR 1709 (Lah.), (7) Case of Ali Murtaza v. The State, reported in 2005 PCr.LJ 1773, (8) Case of Muhammad Ramzan v. Zafarullah and another, reported in 1986 SCM R..1380, (9) Case of Syed Amanullah Shah v. The State and another, reported in PLD .1996 SC 241, (10) Case of Ijaz Akhtar v. The State, reported in 1978 SCM R 64,
(11) Case of Abdul Qadir v. The State, reported in'2004 PCr.L.J 285.
5. ' The learned APG has argued that the applicant/accused has not denied the execution of the cheques. The cheques had been issued by the applicant/accused for repayment of loan. The Cheque has been dishonoured by the Bank for the reasons of insufficient funds. There is no material on record to show that the cheques were issued as security for settlement of some property transaction and were not to be encashed.
6. I have examined the record and perused the case laws cited by the learned counsel. From the record it does not transpire that there was any business relation or any dispute between the brothers in respect of any property or the cheques were issued as security or in trust and were not to be encashed until sale of some plots. Prima facie the cheques were allegedly issued to the complainant in settlement of the loan. The cheque was dishonoured by the bank due to insufficient fiends and not for any other reason and if it was given in trust, then applicant has failed to give any plausible reason or to disclose or inform the complainant or the bank not to encash the said cheque on the due date. The applicants/accused has alsb failed to show any mala fide on the art of the complainant as well as on the investigating agency. The delay in lodging the F.I.R. could' be for the reason to giving a last opportunity to the applicant/accused for payment of the due amount. On the question of lodging of F.I.R. by the attorney of the complainant is devoid of any merit. It is now a settled proposition that every member of the public has a right to set the wheels of criminal prosecution in motion and there is no embargo for any person to lodge a complaint or to be personally aggrieved.
7. As held time and again by superior courts that if any offence although not falling under, the prohibitory clause of section 497, Cr.P.C. would simply not justify grant of extraordinary relief of bail in cases relating to pre-arrest bail, as deeper appreciation of material available on record could not done while deciding pre arrest bail applications. Prima facie the matter does not fall within the provision of further enquiry as contemplated under section 497(2),-Cr.P.C. as the offence is complete on the dishonouring of the said cheque. The mere non-witnessing of the Iqrarnama by itself could not be considered as a ground for granting bail to the applicant/accused. The complainant has no mala tide intention to falsely implicate the applicant/accused in the cases and prima facie the applicant/accused has failed to show that the cheques were not dishonestly issued for payment of any loan or obligation.
8. ' In view of what has been stated above. the applicants/accused have not made out a case for confirmation of the pre-arrest bails and hence the pre-arrest bails granted vide earlier order in the above criminal bail application is hereby recalled. Consequently this criminal bail application stands dismissed. Needless to mention that the above observations and discussion are only tentative and preliminary in nature and should not influence in any manner the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial. I further direct the trial Court to decide this case expeditiously and preferably within a period of three months.