SYED IJAZ HUSSAIN SHAH, J.---Questioning the legality and propriety of the impugned order dated 31-1-2011, passed by Mehr Nasir Hussain, the learned Additional Sessions Judge, Multan whereby the petitioner's post-arrest bail petition respecting case F.I.R. No,949 of 2010 Police Station Mumtazabad District Multan registered under section 489-F, P.P.C. Was allowed subject to furnishing bail bonds in the sum of Rs,100,000 with one surety in the like amount and depositing A Rs,200,000 in cash out of the disputed amount mentioned in the cheque with the learned trial Court under protest entitling the complainant to take the said amount on Superdari from the learned trial Court observing that the same would be subject to final decision of the case, the petitioner has prayed for setting aside the impugned order to the extent of deposit, of Rs,200,000 in cash maintaining that the impugned order to that extent is harsh and by imposing the aforesaid condition the learned court has believed before any trial that the petitioner is guilty.
2. The learned counsel for the petitioner has placed reliance on "Amir Sardar v. The State" (1990 PCr.LJ 414 [Karachi]).
3. Conversely, the learned Deputy Prosecutor-General, Punjab assisted by the learned counsel for the complainant/respondent No,2 has opposed the petition by placing reliance on "Syed Shafiqua Hassan v. Muhammad Shoaib Abbasi and others" (2011 YLR 558) contending that a court can allow bail subject to deposit of cash amount.
4. Arguments heard. Available record perused.
5. The petitioner had applied for post-arrest bail in case F.I.R. No,949 of 2010, Police Station Mumtazabad District Multan registered under section 489-F, P.P.C. Denying the issuance of any cheque in favour of the complainant and also denying to have purchased any buffalo from the complainant. The case certainly did not attract the prohibitory clause of section 497, Cr.P.C. And hence, grant of bail was a rule and refusal of bail was an exception but vide the impugned order dated M-1-2011, the petitioner was allowed bail subject to the following two conditions, that
(1) he filed bail-bonds in the sum ofs.100,000 with one surety in the like amount to the satisfaction of the learned Illaqa Magistrate;
(2) he deposited Rs,200,000 out of te disputed amount mentioned in the cheque with the trial court u der protest. It was further observed that the complainant would be entitled to take the said amount on Superdari from the learned trial Court and the same would be subject to final decision of the case. The impugned order was passed on 31-1-2011 and up-till-now i,e, after the lapse of about four months, the petitioner could not secure his release simply due to non-deposit of cash amount of Rs,200,000. As held in "Amir Sardar v. The State" (1990 PCr.LJ 414 [Karachi]), there is no provision in the Criminal Procedure Code, 1898 providing for ordering cash deposit for bail. Of course, a court can accept cash security to such extent as it may deem fit if such security is offered by the accused under section 513, Cr.P.C. But it cannot insist on cash security at its own. The case- law "Syed Shafique Hassan v. Muhammad Shoaib Abbasi and others" 2011 YLR 558), relied upon by the learned Deputy Prosecutor-General, Punjab is quite distinguishable on facts. In the said case pre-arrest bail of the accused was confirmed by the court, mainly on the ground that he had pledged to reimburse an amount of Rs 450,000 to the complainant in 18 instalments of Rs,25,000 each per month by observing that the complainant would be at liberty to ask for the cancellation of the bail of the accused if he defaulted in payment of the instalments and the complainant had filed the petition for ca cellation of the bail alleging default and since the accused failed to fu fil his promise regarding the making of the payments by instalments, th refore, his bail was cancelled. In the cited case, as mentioned supra, the ccused had himself offered to pay the disputed amount by way of inst Iments, hence, the case-law. Relied upon by the learned Deputy Prosecutor-General, Punjab has no bearing on the present case. The impugned condition in the bail order regarding deposit of cash amount of Rs,200,000 is quite harsh which in fact has amounted to denying bail to the petitioner in a case not attracting the prohibitory clause. It has been held in The State v.
Muhammad Hasham Babar" (PLD 1997 Lahore 605), by a Division Bench of this court that a court while dealing with an application under sections 497/498, Cr.P.C. Has no power to insist upon deposit of cash security in connection with the bail. By imposing the impugned condition for deposit of Rs,200,000 in cash and then ordering for the delivery of the said cash amount to the complainant on superdari, the learned Additional Sessions Judge has travelled beyond his jurisdiction. And he has proceeded in a manner as if a money suit under Order XXXVII, Rules 1 anti. 2, C.P.C. Was pending before him and he' has in a way partly decreed the said suit also against the petitioner.
6. In view of the; foregoing discussion, this Criminal Revision petition is accepted and the impugned order to the extent of the deposit of cash amount of Rs,200,000 with the trial Court under protest is set aside. The petitioner shall be entitled to be released on bail subject to his furnishing bail-bonds in the sum of Rs,100,000 (Rupees One hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.