' Through this petition, Mirza Muhammad Younas Baig, petitioner seeks his pre-arrest bail in A. C.
Reference No. 3-M of 2014 titled The State vs. Mirza Muhammad Younas Baig.
2. Briefly, the facts of the case are that the petitioner deals in business of sale and purchase of commodities and according to the allegations, he used to collect food grains e.g. Wheat and corn etc. From different commission agents running their business at Malka Hans and Arifwala. The petitioner made partial payments to some of the claimants and against - balance amounts, he issued them post dated cheques which were later on dishonoured, thus, he defrauded and cheated the public-at-large and misappropriated huge amount. It is pertinent to mention here that firstly, the petitioner on the same allegations was booked in case F.I.R No. 443/2011, dated 02.11.2011, under Section 489-F, PPC, Police Station Malka Hans, District Pakpattan got registered by Abbas A.I proprietor of Waris Shah Traders. The petitioner was also booked in case F.I.R No. 353/2011, dated 04.08.2011, under Section 489-F, PPC, Police Station Malka Hans got registered by one Shafique Hussain. Thereafter, on the basis of said FIRs the present reference has been prepared against the petitioner, in which, the N.A.B Authorities has issued warrant of arrest of the petitioner dated 06.06.2014.
3. Learned counsel for the petitioner contended that the petitioner had made full payments to the claimants but they did not return the cheques issued to them by the petitioner; that the petitioner is previously not involved in any such type of case; that this is a money dispute of civil nature and the complainants of the FIRs have also filed civil suits which are pending before Civil Courts; that the petitioner has not committed any offence which comes within the ambit of N.A.B Ordinance, therefore, the petitioner is entitled for bail.
4. On the other hand the learned Prosecutor General N.A.B vehemently opposed the petition and contended that the petitioner has committed fraud and cheated the public-at-large.
5. We have heard the learned counsel for the parties and perused the record with their assistance.
6. Admittedly, on the same allegations the petitioner was booked in the cases bearing F.I.R. No. 443/2011, dated 2.11.2011, under Section 489-F, PPC and F.I.R. No. 353/2011, dated 04.08.2011, under Section 489-F, PPC, both registered at Police Station Malka Hans, in which he has been admitted to post arrest bail by this Court through Crl. Misc. No. 9068-B/20I2 and Crl. Misc. No. 9074-B/2012 respectively and trial of both the cases is pending adjudication before the learned Allaqa Magistrate and he remained in jail for about one year in the said cases. The record also shows that civil suits have also been filed by the complainants of both the cases which are pending adjudication. Admittedly, the petitioner was dealing with some commission agents and he did not defrauded or cheated the public-at. Large directly, therefore, whether the provisions of Section 9(a)(ix) of the National Accountability Ordinance, 1999 attracts in this case is a matter of further inquiry which will be seen during the trial. Under Section 9(a)(ix) of the National Accountability Ordinance, the N.A.B had no jurisdiction to take cognizance of an offence of cheating under Section 415, PPC unless the accused had dishonestly induced members of the public-at-large to deliver any property including money or valuable security to any person and not in an individual case.
Reference in this regard may be made to the case of Naseem Abdul Sattar & 6 others vs. Federation of Pakistan & 4 others (PLD 2013 Sindh 357). Apparently, it is a business transaction between the petitioner and commission agents. The trial is almost completed and there left only the cross-examination of the Investigating Officer, therefore, at this stage if the petitioner is sent behind the bars it will prejudice his case. In view of the foregoing reasons, this petition is allowed and the ad interim pre-arrest bail already granted to Mirza Muhammad Younas Baig, petitioner is hereby confirmed subject to his furnishing surety bonds equivalent to defrauded amount i.e. Rs.7.9 Millions to the satisfaction of the learned trial Court.
7. It is, however, clarified that the observations made herein above are just tentative in nature and strictly confined to the disposal of this bail petition.