1. ORDER TUFAIL H. EBRAHIM, J.---Through this application the applicant has sought reduction of surety amount from Rs.30,00,000 to Rs.1,00,000.
2. Brief facts of the case are that a Statement under section 154 Cr.P.C. Complainant Muhammad Uzair lodged an F.I.R. No. 498 of 2009 dated 25-12-2009 at Police Station Mubina Town Karachi East for an offence punishable under section 489-F, P.P.C., against the applicant/ accused Laeeq Ahmed. The applicant/ accused approached to the Court of Sessions by filing bail before Arrest Application No.26 of 2010 and the Court of IVth Additional Sessions Judge Karachi East has granted interim pre-arrest bail to the applicant/accused in the sum of Rs.1,00,000 and P.R. Bond in the like amount and the same was fixed for confirmation or otherwise. On 17-2-2010 at the time of confirmation of the interim pre-arrest bail, the Court of IVth Additional Sessions Judge, Karachi East has confirmed the pre-arrest bail, but the amount of surety has been enhanced to Rs. 30,00,000 from Rs.1,00,000 with the directions that the surety amount to be furnished before the Nazir of that Court within one week. Hence the applicant approached to this Court for reduction of the surety amount.
3. The learned counsel for the applicant/accused has contended that the applicant is 64 years old law abiding senior citizen of Pakistan and was also a former Hockey Olympian and the member of the team which won Olympic Gold Medal in 1968. Per learned counsel the applicant is now working as a clearing and forwarding agent and through modest income is supporting his family and has no means to arrange for the enhanced surety amount. Per learned counsel the applicant has been falsely implicated in this and there is no likelihood that the applicant would abscond. The applicant has already submitted the original documents of his "Toyota Parado Jeep and Honda Civic" for surety purposes before the trial Court and the said documents have been sent for verification.
4. Learned D.P.G. Has opposed the grant of this application on the ground that the applicant had issued the said cheques and presumption of innocence is missing in crimes under section 489-F, P.P.C. Per learned DPG there is sufficient material to connect the applicant with the commission of crime and the growing tendency of issuing cheques without arranging sufficient funds to honour the instruments is obviously done with the intent to make some quick money by defrauding others, and this menace has to be curbed with an iron hand as it has destroyed the fiber of the society and created mistrust not only in the business community but the entire society and therefore no leniency should be granted in reducing, the surety amount. In support of her contention learned D.P.G. Has relied upon the case of Ali Hakimuddin, Ghulam Ali Mandiwala v. The Stale reported in 2009 M LD 1189, wherein the Hon'ble Judge of his Court in a case of cancellation of bail has dilated upon the implication of section 489-F, P.P.C. As follows:-- "However in cases under section 489-F, P.P.C., not only that such presumption of innocence is missing but there is sufficient material to connect an accused person with the commission of crime, for the reason that under section 118 of "The Negotiable Instruments Act" every negotiable instrument until the contrary is proved is presumed to be drawn for consideration, whereas, under section 489-F, P.P.C. , presumption of dishonesty is attached with the drawer of dishonoured negotiable instrument unless he can establish, for which the burden of proof has been placed on him, that he had made arrangements with the bank to assure that the cheque would be honoured and the bank was at fault in not honouring the cheques, and secondly, what better material could be available with the prosecution than a dishonoured cheque to connect the accused persons with the commission of the offence.
5. The growing tendency of issuing cheques without arranging sufficient funds to honour the instrument obviously with the intent to make some quick money by defrauding others, had destroyed the fiber of the society and created mistrust not only in the business community but the entire society and therefore, is to be viewed seriously. The in corpora section of section 489-F, P.P.C.
6. On 25-10-2002 by transforming a pure civil transaction into an offence by shilling the burden of proof from Prosecution as envisaged under section 420, P.P.C., upon the shoulders of accused appears to be a step towards eradiation of such menace.
7. It would, therefore, be safe to conclude that in absence of initial presumption of innocence in favour of an accused person and availability of sufficient material in the form of dishonoured instrument to connect such accused person with the commission of offence, grant of bail "as of rule" can by no stretch of imagination to be termed in consonance with the principle laid down in the case of Tariq Bashir(supra) and therefore, the Court should be strict in exercise of discretion of bail to a person charged with such offence."
8. The Hon'ble Judge in the above case did not allow the application for cancellation of bail, but increased the surety amount from Rs.2,00,000. To the amount equivalent to dishonoured instrument.
9. I have heard the learned counsel for the parties and perused the case law. 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.
10. And Financial Institutions (Recovery of Finance) 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.
11. Prima facie the applicant is respectable citizen and due to his financial conditions is unable to furnish the enhanced surety amount. It is unlikely that a former hockey Olympian would abscond. A reasonable case has been made out for the reduction of surety amount so that the very object of granting bail is not defeated and the applicant is not made to suffer unnecessarily for reasons beyond his control. Keeping in view the facts, circumstances of the case and discussion as above, I hereby reduced the surety amount from Rs.30,00,000 to Rs.7,50,000. Accordingly the Criminal Miscellaneous Application is allowed as above.