ORDER AQEEL AHMED ABBASI, J.---This is an application for grant of pre-arrest bail under section 498/498-A, Cr.P.C. Filed by the applicant namely, Dr. Anjum Ara Manzar seeking bail before arrest in F.I.R. No.28 of 2011 registered under section 489-F, P.P.C. At Police Station Darkhshan, Clifton Town, Karachi.
2. The prosecution story as stated in the F.I.R. Is as under: -- "S.M. Gharib Nawaz Daccawala Advocate Supreme Court Messrs Nawaz and Company Advocates Suite No.3-13, Beauty House Near Askari Bank Limited, Corner: Preedy Street and Abdullah Maroon Road, Karachi (South) COMPLAINANT, v. Dr. Anjum Ara Manzar D/0 H/Dr. (Late) Manzaruddin, presently working at Fatima Bai Hospital, Patal Para Off Nashtar Road, Karachi and resident of S.F-1, Block-23B Seaview Apartments, Seaview Township, Phase-V, Ext. DHA, Karachi ACCUSED/Opponent.
Complaint under section 489-F, P.P.C. Most Humbly Sheweth as under that the complainant is a very Senior Advocate of the Hon'ble Supreme Court of Pakistan and an Advocate on Record of the Hon'ble Supreme Court of Pakistan as well having his office in the name of Messrs Nawaz and Co.
Advocates at the above cited address since 1970 whereas since 1972 H/Dr. Manzaruddin (late) the Opponent's father was carrying on his H/Medical Practice in an adjacent in the same building and residing with his family in Room No.4, Coronation Building, Opp. The Regal Cinema, Preedy Street, Saddar, Karachi. The Opponent/ accused was also residing with him at the said address. The since 1972/72 the accused reverant father was the complainant's client in each and every legal matter.
By The Grace of Allah Almighty Omnipotent, all the cases were decided in his favour. However, with the passage of time H/Dr. Manzaruddin and his were started treating the complainant as his son and all their children including the accused person as their brother rather they also always consulted and engaged him as their counsel in their on cases as well. That on 4-6-2006 actually and as per complaint i.e. 4 of 2006 the accused had admittedly taken a loan of;
(i) Rs.200,000 (Rupees Two Hundred Thousand) through Payee's Account Only Cross Cheque No.00008260, drawn on Messrs Allied Bank Ltd. (A.H. Br.) Karachi.
(ii) Rs.200,000 (Rupees Two Hundred Thousand) through Payee Account Only Cross Cheque No.003271.6, drawn on Messrs Habib Bank Ltd. (Tibet Centre Br.), Preedy Street, Karachi.
(i.e) Rs.200,000 (Rupees Two Hundred Thousand) through Payee's Account Only Cross Cheque No.2225476, drawn on Messrs United Bank Ltd., M.A. Jinnah Road, Karachi (South).
On all these cheques her CNIC No.42301-0972242-6 was specifically mentioned and they were encashed by the Accused Person on the next day through her Bank: and (iv) Rs.100,000 (Rupees One Hundred Thousand) in cash; in aggregate amounting to R.s.700,000 (Rupees Seven Hundred Thousand) only just for two/three weeks to satisfy and square up the accounts of her creditors who were pressing hard, harassing intimidating, and torturing her day and night rather unequivocally and categorical threats of murder were also 'hurled on her. It is pertinent to mention here that at that time the accused was carrying on her medical profession in the name and style of Anjum Ultrasound at Regal Square (former Regal Cinema Plot) Preedy Street, Karachi (South). That thus on 4-1-2006, the Accused/Opponent incurred a debt liability amounting to Rs.700,000 (Rupees Seven Lacs) and was liable to reimburse and repay the same to the complainant within two/three weeks as undertaken by her and solemnly promised.
That on the expiry of the stipulated period the complainant repeatedly telephonically called, approached, and requested the accused/ Opponent to honour her commitment reimburse and pay back the above-cited debt/loan amount of Rs.700,000. Every time she unequivocally admitted her liability rather earnestly begged and requested for some more and more time but all in vain.
However, on 2-1-2009, by way of repayment ' of the above said loan/debt of Rs.700,000 the accused/opponent issued and handed over to the complainant four Payee's Account Only Cross Cheques:
(i) Cheque No.0011717 for Rs.200,000
(ii) Cheque No. 0011718 for R. s.200,000 (i.e) Cheque No.0011719 for Rs.200,000 and
(iv) Cheque No.0011720 for Rs.100,000 that is in aggregate amounting to Rs.700,000 on her personal Account No.03600000022 maintained with Messrs Meezan Bank Ltd. Khayaban-e-Shamsheer, Phase-V (Ex.) D.H.A., Karachi, marked as Annexures "C/I" to "C/4" respectively. At that time too the accused/Opponent was running her ultrasound clinic in the name and style of Dr. Anjum Ultrasound within the limit of P.S. Preedy Karachi (South).
That as advised by the accused/ Opponent repeatedly her above said four cheques were presented by the complainant through his Banks to her Bank for encashment repeatedly and every time the same were bounced/ dishonoured by her bank with endorsements: "Funds Insufficient" four time and "Payment stopped by Drawer" four times unequivocally called upon to repay back the aforesaid loan/ cheques amount. She requested a little more time but the day never dawn. The Memorandums of dishonourment issued by her Bank are annexed herewith and marked as Annexures "C/5" to "C/12". However, thereafter whenever the complainant contracted the accused Opponent and unequivocally called upon her to pay back the debt/cheques amounts, and served dozens of legal notices on the Accused/ Opponent which were admittedly received and acknowledged by her. For the sake of brevity some of them are produced herewith and marked as Annexures "C/13" to "C/25" but none ever replied in writing thus the averments made therein remains unrebutted rather tantamount to having been unequivocally as true and correct.
Now the accused/Opponent is avoiding even to face or attend the complainant's telephonic calls.
However, on 23-12-2010 at about 3-00 p.m. The complainant has succeeded in meeting her in the presence and at the Office of Mr. Ghulam Hussain, the Admin of Fatima Bai Hospital where she is serving and heading the ultrasound department, and requested, demanded, and called upon to payback her debts/cheques amount; whereupon she became rash and impertinent rather used some unparlimentary and indecent words against the complainant, come what may, totally refused to honour her commitment to repay the indebted amount of Rs.700,000 (Rupees Seven Lacs) only for which she had also issued the dud cheques. However without paying her in the same coins the complainant with the permission of Mr. Ghulam left his office but unequivocally told her that is enough. Great indulgence has already been shown to her. Now he will be constrained to take some positive and definite steps to initiate both civil and criminal proceedings against her.
8. Prima facie it is crystal clear and well established that the above said four cheques were dishonestly issued by the accused/Opponent towards the repayment of the above said loan/ debt amount of Rs.700,000 (Rupees Seven. Lacs) due to the complainant which have been repeatedly dishonoured on presentation to her Bank; and as such she is liable to be booked, tried, and punished under section 489-F, P.P.C.
9. That the cause of action has accrued within the jurisdiction of Preedy P.S., Karachi (South); hence the complainant before this Police Station.
10. That in the prime interest of justice, therefore, it is most respectfully prayed that 1) this Complaint may be converted into F.I.R., CASE MAY BE REGISTERED AGAINST THE ACCUSED/OPPONENT under section 489-F, P.P.C. for dishonestly issuing, within the jurisdiction of this P.S. Four dud Cheques Nos.0011717, 0011718, 0011719, and 0011720 in aggregate amounting to Rs.7,00,000 (Rupees Seven Lacs) only on her personal Account No.03600000022 maintained with Messrs Meezan Bank Ltd., Khayaban-e-Shamsheer, Phase-V (Extortion) D.H.A. Karachi (South) for repayment of her loan/debt amount due to the complainant; (ii) the NBW of the accused be issued, she be arrested and detained/imprisoned till the loan/debt amount due to the complainant is square up; (i.e) the matter be referred to the Hon'ble Court for trial, conviction, and punishment of the accused; (iv) The accused be punished for dishonestly issuing four dud cheques towards repayment of her debt/loan amount due to the complainant (v) The accused be imprisoned for three years for issuing each dud cheque that is in aggregate for twelve years with fine of Rs.2,000,000 (Rupees Two Million) to be paid to the complainant; failing which the accused be further imprisoned for three years for each dud cheque and (vi) Further and other reliefs may also be provided to the complainant to set the clock in the right direction to deter and prevent such practice. Signature of complainant; S.M. Gharib Nawaz Advocate Daccawala and dated 29-12-2010 Enclosed as mentioned above."
3. In response to office objection regarding maintainability of direct bail before arrest application before this Court, the learned counsel for the applicant submitted that since the complainant is an influential person, who is an advocate by profession, therefore, there was serious apprehension that he would exert his influence on the lower Courts, hence the applicant has approached this Court directly. It was further argued that even otherwise this Court has concurrent jurisdiction to grant such relief under special circumstances. In support of her contention, learned counsel placed reliance in the case reported as Riaz Ahmed Coharshahi v. The State PLD 2000 Karachi 6, Abdul Rasheed v. The State PLD 2003 Karachi 682, Rais Wazir Ahmad v. The State 2004 SCMR 1167. In view of hereinabove, office objection was deferred to be considered at the time of hearing of bail application.
4. On 21-3-2011, the applicant was admitted to ad interim pre-arrest bail in the sum of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of Nazir of this Court. Notices were issued to.The Prosecutor-General Sindh as well as complainant.
5. The complainant namely, S.M. Gharib Nawaz Daccawala appeared on Court notice and opposed the bail application of the applicant, whereafter the matter was heard on merits.
6. Learned counsel for the applicant submitted that the applicant is a lady, Doctor by profession has been falsely implicated in the instant case by the complainant, who was their family advocate and used to conduct the cases of her father relating to their properties. Learned counsel further argued that the alleged cheques were obtained by the complainant in complete confidence, who promised that the same cheques are required to meet some personal exigencies and will not presented before the bank for encashment. It was further contended that the relationship of lawyer and client has been exploited by the complainant, whereas the applicant has already suffered financial losses as the cases of the applicant and her family have been seriously neglected by the complainant. It was contended by the learned counsel that the alleged cheques were issued in the year 2009 in good faith keeping in view the relationship with the complainant, who was their family advocate, whereas there was no dishonest intention on the part of the applicant. Per learned counsel, there is an unexplained inordinate delay of about two years in lodging the F.I.R. It is further contended that the applicant has been victim of circumstances, and has been defrauded and cheated by the complainant for which application has been filed against the complainant before the S.H.O., P.S. Darakhshan and the matter has also been brought to the notice of Pakistan Bar Council. Learned counsel stated that the alleged crime does not fall within the prohibitory clause, whereas applicant is a lady, who is Doctor by profession and belongs to be a noble family, hence she is entitled to pre-arrest bail. In support of her contention, she has placed reliance on the following case-laws:--
(1) Ghulam Kadir v. The State 2007 YLR 1495
(2) Ali Murtaza v. The State 2005 PCr.LJ 1773
7. Conversely, the complainant has opposed the grant of bail to the applicant on the ground that since the cheques issued by the applicant were dishonoured on presentation on account of insufficient funds, therefore, applicant is not entitled to bail at this stage. Complainant read out the contents of F.I.R. And submitted that as a matter of tact the amount was initially given by the complainant to the applicant as loan, whereafter applicant promised to return the same and issued four cheques in favour of the complainant, which were bounced on presentation. Complainant has vehemently denied the allegations of the applicant and submitted that in order to save her skin the applicant has filed frivolous application against complainant.
Complainant submitted that under the circumstances, applicant is not entitled to any concession of pre-arrest bail. In support of his contention, he has placed reliance on the following judgments:- -
(1) Haji Muhammad All Khan and 3 others v. The State 2010 PCr.LJ Karachi 310
(2) Abdul Zahoor Khan v. The State 2011 PCr.LJ 747
(3) Jalal Akbar v. The State 2011 PCr.LJ Karachi 754
(4) Muhammad Yaqub v. State and another PLJ 2009 Cr.0 (Lahore) 1114
(5) Muhammad Iqbal Lali v. The State 2010 PCr.LJ 1881 While concluding his submission, the complainant has stated that he will not oppose the grant of bail to the applicant provided she settles the matter with the complainant amicably, or, if the bail is granted the same will be subject to deposit of surety amount at least in the sum equivalent to the amount of dishonoured cheques.
8. Learned A.P.-G. Has also opposed the grant of bail to the applicant/accused and submitted that the bail cannot be claimed as a matter of right even in non-bailable cases. In support of his contention, he has placed reliance in the case of' ' Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442.
9. I have heard learned counsel for the applicant, complainant as well as learned A.P.-G. And perused the record and the case-law referred to and relied upon by the parties. On tentative assessm ent of record, it appears that admittedly there is relationship of client and advocate between the applicant and complainant which assumes relationship of confidence between the parties. However, above referred transaction between the applicant and the complainant appears to be beyond the usual relationship of a client and her advocate as governed and regulated by the Legal Practitioners and Bar Councils Act, 1973. The element of good faith and trust between the parties in view of fiduciary relationship cannot be ruled out.
10. There is inordinate delay of about two years in registration of F.I.R. Dispute A relates to documentary evidence, and the alleged offence is required to be established through evidence before the trial Court. Matter requires further inquiry, whereas the alleged offence is bailable and does not fall within the prohibitory clause. The applicant is a lady, who is a Doctor by profession and has no previous criminal history. It is trite principle of law that grant of bail in bailable offence is a rule, whereas refusal is exception. Reference in this regard can be made to he judgment of the Hon'ble Supreme Court in the case of Zafar Iqbal v. Muhammad Anwar and other 2009 SCMR 1488.
Similarly, bail cannot be withheld as punishment whereas arrest of the applicant under the circumstances will not serve any useful purpose when the matter relates to documentary evidence. There is no likelihood that the applicant, who is a lady and Doctor by profession, if enlarged on bail, will abscond.
11. The case-law relied upon by the learned counsel for the applicant appears to be relevant to the facts and circumstances of this case, whereas the case-law relied upon by the complainant is not attracted to the distinguishable facts and circumstances of this case. In the case of Niaz All v. The State 2011 PCr.LJ 601 the learned Single Judge of this Court declined bail before arrest to the applicant merely on the ground that since the applicant did not approach the Court of first instance for seeking bail before arrest, therefore, interim pre-arrest bail granted to the applicant was recalled. However, the F.I.R. Was under sections 451, 436 and 427, P.P.C. And the facts of the case were entirely different and dubious. In the case of Abdul Zahoor Khan v. The State 2011 PCr.LJ 747, the pie-arrest bail was declined by the learned Single Judge of this Court to the applicant by observing, that element of cheating and fraud during business transaction between parties is manifest from the conduct of the applicant. In the case of Akbar Ali v. The State 2011 PCr.LJ 408, the learned Single Judge of the Lahore High Court declined bail to the applicant by observing that element of cheating; and dishonestly inducing delivery of property, forgery for purpose of cheating were manifest on record, whereas there was sufficient material to connect the applicant/accused with the alleged offence under sections 420/468/471, therefore bail was declined. In the case of Bilal v. The State PLJ 2009 Cr.C. (Lahore) 1116, the learned Single Judge at Multan Bench Multan declined the bail to the applicant on the ground of concealment of facts whereby earlier bail application filed by the applicant was dismissed by another bench which fact was concealed from the Court. In the case of Muhammad Iqbal Lali v. The State 2010 PCr.LJ 1881, offences under sections 496 and 376 and facts of this case distinguishable, hence the same are not attracted in the instant case at all.
12. It appears that neither the complainant nor A.P.-G. Raised objection about maintainability of instant bail before arrest application filed by the applicant directly before this Court. Moreover, reference made to the reported cases by the counsel for the applicant appears to be correct as this. Court has concurrent power to grant pre-arrest bail in the appropriate cases.
13. As regards the fixation of amount of surety equivalent to the amount of dishonoured cheques, I am of the humble view that the same cannot be applied as a matter of rule in all the cases. Even otherwise, amount of surety cannot be used to penalize the applicant or to deprive him/her the concession of bail in appropriate cases. Moreover the,grounds for consideration of bail before arrest are different and distinguishable from the grounds of post-arrest bail, whereas the case-law relied upon by the complainant regarding fixation of the amount of surety equivalent to the disputed amount is not attracted in the case where the applicant can make out a prima facie case for pre-arrest bail.
14. In a recent judgment of this Court, reported as 2011 YLR 75, a learned Judge of this Court while defining the scope of section 489-F, P.P.C. And fixation of amount of surety has held as under:-- "It is my view that if the trial Court in matters of bail relating to section 489-F, P.P.C. Comes to the conclusion that the applicant is entitled to the grant of bail, then while granting bail the surety amount as a rule of thumb should not be equivalent to the dishonoured cheque; but should be reasonable and in accordance with the facts and circumstances of each case, so that the very object of granting bail should not be defeated. Even in the matters of Negotiable Instruments under Order XXXVII, C.P.C. And Financial Institutions (Recovery of Finances) Ordinance, 2001, the Courts have discretion either to dismiss or to grant leave to defend application of the defendant, with or without surety/ security being taken into consideration the nature and facts of the case."
15. It will not be out of place to observe that the fixation of the amount of surety is the discretion of the Court admitting an accused on bail, which may very front case to case. Provision of section 499, Cr.P.C. Provide a complete mechanism for securing a person's appearance before a Court of before a Police Officer including consequence for non-appearance. The very purpose of releasing an accused on surety bond is to ensure his attendance on, each and every date of hearing till conclusion of the trial for compliance whereof the person who stands his surety executes a surety bond in a required sum of money and undertakes to produce accused on each date of hearing.
16. In view of hereinabove. I am of the view that the applicant has made out a case of confirmation of pre-arrest bail granted on 21-3-2011. Accordingly, the ad interim pre-arrest bail granted on 21-3-2011 is hereby confirmed against same surety bond..