' ABDUL RASOOL MEMON, J.---By this common order, I would like to dispose of four Criminal Miscellaneous Applications Nos.199/2012, 200/2012, 201/2012 and 202/2012 filed by the applicants wherein common question is involved for reduction of surety amount on account of equity, fair play, justice and conditions laid down in section 499, Cr.P.C.
2. All four cases were registered under section 489-F, P.P.C. Wherein the applicants were granted bail in those crimes by IInd Judicial Magistrate Karachi South on bail on furnishing surety equivalent to the amount of cheques bounced/dishonored on presentation. Being dissatisfied with the orders in respect of surety amount, the applicants have preferred revision petitions which were made over to IIIrd Additional Sessions Judge South who has reduced the surety amount to half (50%) of amount of alleged dishonored cheques to each of the applicants with P.R. Bond. The details of the 'cases in hand are mentioned in the order of court IIIrd. Additional Sessions-Judge South which are reproduced herein below:--
(i) The Criminal Revision No,25/2012 (F.I.R. No,696 of 2008) arises out of the Criminal Case No,2841 of 2011, where both the applicants have been admitted to bail subject to furnishing the solvent surety in the sum of Rs,70,000,000 (Seven Million each).
(ii) The Criminal Revision No,26 of 2012 (F.I.R. No,661 of 2011) arises out of the Crime Case No,4321 of 2011 where both the applicants have been admitted to bail subject to furnishing the solvent surety in the sum of Rs,1,00 00,000 (Ten Million) each.
(iii) The Criminal Revision No,27 of 2012 (F.I.R. No,199 of 2011) arises out of the Criminal Case No,4385 of 2011 where both the applicants have been admitted to bail subject to furnishing the solvent surety in the sum of Rs,40,00,000 (Four Million) each.
(iv) The Criminal Revision No,31 of 2012 (F.I.R. No,224 of 2011) arises out of the Criminal Case No,4639 of 2011 where both the applicants have been admitted to bail subject to furnishing the solvent surety in the sum of Rs,31,00,000 (3.1 Million) each.
3. Learned counsel for the applicants has argued that while fixing the amount of surety bond the court had to take into consideration the financial position of the persons concerned whether he will be in a position to furnish the surety or not, otherwise such an order would amount to refusal of bail if the amount is fixed beyond the reach of accused persons. In. Support of his contention, learned counsel for the applicants has placed reliance on the cases of Mian ABDUL WAHID v. THE STATE (1989 MLD 4731), KAMAL and another v. THE STATE (1992 PCr.LJ 1152), ABDUL QADIR and another v. THE STATE (PLD 1991 Karachi 353), (Swami) Chetanand v. Gurbakhsh Singh (AIR 1930 Lahore 668), KHAN SHAH v. THE STATE and another (1989 MLD 2652).
' In rebuttal learned counsel for the complainant has argued that the applicants have committed fraud with the complainant party and are main players of cheating and usurping more than 50 millions and in order to substantiate his contention he has filed a bunch of documents showing that the present applicants have committed fraud with many others and are facing trial even before the Banking Courts. He has contended that in cases sufficient grounds are available on .Record to connect the accused in commission of crime and even under section 118 of Negotiable Instrument. Act, 1881 every negotiable instrument until the contrary view was proved, was presumed to be drawn for consideration and under section 489-F, P.P.C. Presumption of dishonesty was attached with a drawer of dishonored negotiable instrument, therefore, the trial court while granting hail to accused should be strict in exercise of discretion of bail to a person charged with such offence and the bail amount should be equivalent to dishonored cheque. In support of his contention he has placed reliance on the cases of IMRAN v.
THE STATE (2011 MLD 462), Dr. ANJUM ARA MANZAR v. THE STATE (2011 YLR 2914), AMAN ULLAH v. THE STATE (2007 YLR 1120), SHAUKAT ALI, MANAGER N.B.P. v. M. ANWAR and others (2007 YLR 2892(1) and ALI HAKIMUDDIN GHULAM ALI MANDVIWALA v. THE STATE (2009 MLD 1189).
5. Learned A.P.G. Has supported the contention of learned counsel for complainant.
6. I have given careful consideration to the arguments and gone through the relevant papers on record. The trial court while granting the bail to the applicants has observed as under:-- "I have considered the arguments raised from both sides and gone through the available case record which shows that the proprietor of the company/firm is accused Muhammad Naseem and not the present accused/applicants as such the liability/responsibility of the accused/applicants is yet to be ascertained during the course of trial, hence in my humble view the case of the accused/applicants requires further inquiry.. Admittedly there is delay of about 3 years in lodging of F.I.R. For which no plausible reasons available on record. Moreover, section 420 is bailable while section 506, P.P.C. And 489-F P.P.C. Are punishable upto 2 years and 3 years respectively as such does not fall within the prohibitory clause of section 497, Cr.P.C. And in such like matter the bail is rule while its refusal is an exception as per the guide line provides in various case laws of the Superior Court. The final police report/challan under section 173, Cr.P.C. Has already been submitted in the court and the accused/applicants are no more required for the purpose of further investigation.
7. In rebuttal learned counsel for the complainant has argued that the applicants have committed fraud with the complainant party and are main players of cheating and usurping more than 50 millions and in order to substantiate his contention he has filed a bunch of documents showing that the present applicants have committed fraud with many others and are facing trial even before the Banking Courts. He has contended that in cases sufficient grounds are available on .Record to connect the accused in commission of crime and even under section 118 of Negotiable Instrument. Act, 1881 every negotiable instrument until the contrary view was proved, was presumed to be drawn for consideration and under section 489-F, P.P.C. Presumption of dishonesty was attached with a drawer of dishonored negotiable instrument, therefore, the trial court while granting hail to accused should be strict in exercise of discretion of bail to a person charged with such offence and the bail amount should be equivalent to dishonored cheque. In support of his contention he has placed reliance on the cases of IMRAN v. THE STATE (2011 MLD 462), Dr. ANJUM ARA MANZAR v. THE STATE (2011 YLR 2914), AMAN ULLAH v. THE STATE (2007 YLR 1120), SHAUKAT ALI, MANAGER N.B.P. v. M. ANWAR and others (2007 YLR 2892(1) and ALI HAKIMUDDIN GHULAM ALI MANDVIWALA v. THE STATE (2009 MLD 1189).
5. Learned A.P.G. Has supported the contention of learned counsel for complainant.
6. I have given careful consideration to the arguments and gone through the relevant papers on record. The trial court while granting the bail to the applicants has observed as under:-- "I have considered the arguments raised from both sides and gone through the available case record which shows that the proprietor of the company/firm is accused Muhammad Naseem and not the present accused/applicants as such the liability/responsibility of the accused/applicants is yet to be ascertained during the course of trial, hence in my humble view the case of the accused/applicants requires further inquiry.. Admittedly there is delay of about 3 years in lodging of F.I.R. For which no plausible reasons available on record. Moreover, section 420 is bailable while section 506, P.P.C. And 489-F P.P.C. Are punishable upto 2 years and 3 years respectively as such does not fall within the prohibitory clause of section 497, Cr.P.C. And in such like matter the bail is rule while its refusal is an exception as per the guide line provides in various case laws of the Superior Court. The final police report/challan under section 173, Cr.P.C. Has already been submitted in the court and the accused/applicants are no more required for the purpose of further investigation.
7. Anyhow, so far as the point of fixation of amount of surety equivalent to the amount of dishonored cheques, I am of the humble view that the same cannot be applied as a matter of rules in all the cases even otherwise the amount of Surety cannot be used to penalize the applicants or deprive them from the concession of bail in appropriate cases. This dictum is laid down in a recent Judgment of this court reported as Dr.Anjum Ara Manzar v. The State (2011 YLR 2914). In another case of Laiq Ahmed v. The State reported in (2011 YLR 75), learned Judge Anyhow, so far as the point of fixation of amount of surety equivalent to the amount of dishonored cheques, I am of the humble view that the same cannot be applied as a matter of rules in all the cases even otherwise the amount of Surety cannot be used to penalize the applicants or deprive them from the concession of bail in appropriate cases. This dictum is laid down in a recent Judgment of this court reported as Dr.Anjum Ara Manzar v. The State (2011 YLR 2914). In another case of Laiq Ahmed v. The State reported in (2011 YLR 75), learned Judge of this court while defining the scope of section 489- F, P.P.C. And fixations of the 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 matter 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".
8. In supra cases, it had also been held that fixations of amount of surety are the discretion of the court admitting the accused on bail which may vary from case to case. Provisions of section 499, Cr.P.C. Provide complete mechanism for securing the persons appearance before a court or before the Police Officer including the consequences of nonappearance.
9. It will be worthwhile to mention here that purpose of releasing an accused on surety bond is to ensure his attendance on each and every date of hearing before trial court till conclusion of the trial for B compliance thereof, the person who stands surety execute surety bond in the required sum or money and undertakes to produce the accused on each date of hearing.
10. It is a settled law that each and every case is to be decided on its c own peculiar facts and circumstances as law laid down by Honourable Supreme Court in Muhammad Saleem's case 1994 SCMR 2213 and Musthaq Ahmed's case PLD 1973 SC 418 it is held as follows:- "Everything said in a judgment and more particularly in a judgment in a criminal case mast be understood with great particularity as having been said with reference to the "facts of that particular case".
11. Relying on the above case-law that each case has to be decided on its own circumstances, I am of the opinion that the citations relied upon by the learned counsel, for the complainant are not applicable in this case inasmuch as the present applicants have been booked in four different cases and huge/exorbitant amount of surety has been called from them for their release on bail.
The object to calling upon the accused to furnish surety is not to penalize them but to ensure their presence in court, therefore, the amount of surety must be fixed with regard to the nature of offence and means of the accused. The accused although having been allowed bail by the trial court in the month of June had not been able to ensure their release for about 4 months due to huge surety amount. In such circumstances I am of the opinion that a reasonable cause has been made out for the reduction of surety by the applicants so that very object of granting bail is not defeated and the applicants may not suffer agony of jail unnecessarily for the reasons beyond their control. In the circumstances I hereby reduce the Surety amount from 50% to 25% of the amount of alleged dishonored cheques to each of the applicants/accused so as the P.R. Bond in the like amount.
12. With the above observation, criminal miscellaneous applications in hand are disposed off accordingly.