MUHAMMAD SALEEM JESSAR, J.---Through instant Cr. Misc. application, applicant Muhammad Idress Bugsra seeks reduction of surety amount and has prayed as under:- "It is further prayed that this Hon'ble Court may kindly reduce the surety amount from Rs, 5,000,000/- (Rupees Fifty Lac) to Rs, 500,000/- (Rupees Five Lac) to the applicant/ accused".
2. Crux of the application as manifest from impugned order dated 17.01.2018 are that the Complainant Asif Tousif lodged FIR against applicant accused Muhammad Idress at P.S. Madina Town Faisalabad (Punjab) bearing FIR No,282/2017 under Section 498-F, P.P.C. alleging therein that he is an Industrialist having business terms with accused Muhammad Idress who deals in the business of textile machinery and on account of business invested the amount and by consent MOU was executed whereby amount was settled by virtue of agreement and accused/applicant has agreed to pay sum of Rs,50 million and also executed the Iqrarnama and had given cheque bearing No,0968044 dated 15.09.2016 of Samba Bank amounting to Rs,50 million. The cheque in question was presented with Habib Metropolitan Bank Susan Road Branch within the limits of PS Madina Town, Multan, which became dishonoured due to insufficient funds on 16.09.2016.
Thereafter, complainant in presence of witnesses Iftikharul Haq of peoples colony and Javed Iqbal of Jaran Wala Road Faisalabad approached to the accused who stated that due to some online fault the amount could not be arranged. The complainant continuously approached the concerned bank but no amount was deposited by the applicant in his account, therefore, FIR was lodged, as the cheque was dishonoured.
3. I have heard learned counsel for the parties and perused the record.
4. Mr. Javed Ahmed Chhatari, advocate for the applicant, at the very outset, contended that the applicant is no more required to be detained in any criminal custody case pending adjudication before the courts of law at Karachi, however, he has sought protective bail only to approach the trial Court at Faisalabad. He further contended that Faisalabad Police has made a request for transitory remand before thb learned IXth Civil Judge and Judicial Magistrate, Karachi (West) but their request was rejected on the ground that three cases are pending adjudication against the applicant before the trial Court at Karachi. Learned counsel argued that it is prerogative and discretion of the trial Court where the case is pending adjudication against the applicant to decide the surety amount, howsoever, it may be huge but the Xth Additional Sessions Judge, Karachi
(West) was not competent to impose such amount for his release. He further argued that the applicant is respectable businessma n having much reputation in the society has been arrayed by the complainant only to malign his status and to cause injury to his dignity, prestige and honour.
He lastly argued that to impose huge surety amount on applicant tantamount to deprive a person of his liberty rather to release him on bail against the amount within his means. In support of his contention, learned Counsel for the applicant has placed reliance on the cases of Mrs. Asma Alamgir v. Federation of Pakistan and others (2017 YLR 1626), Sikandar Abdul Karim v. The State (1998 SCM R 908), Mumtaz Hassan Zubairi (2017 PCr.LJ Note 69), Saifullah v. The State (2005 M LD 514), Irfan Yaqoob v. The State (2014 M LD 486), Muhammad Khokhan and another v. The State (2015 PCr.LJ 1674) Abdul Jabbar v. The State (1998 PCr.LJ 1465) and Riazur Rehman v. The State (1999 YLR 1366).
5. On the other hand, Ms. Rahat Ehsan, Addl. PG appearing for the state has argued that huge amount is involved in the matter in question, therefore, Additional Sessions Judge has imposed such amount which, if compared, is much less within the amount involved in the cheque in question. She, however, admits that Xth Additional Sessions Judge, Karachi (West) is not a trial court and it is the prerogative right and discretion of the trial Court where case is pending adjudication against the applicant, who being competent, may fix the amount of surety as per his satisfaction. She contended that admittedly, the complainant has also not challenged the order of rejection of remand of Faisalabad Police by the Judicial Magistrate at Karachi, according to her, even she has no instructions whether the prosecution has challenged the said order or even present one. In view of above, she has very candidly agreed to grant instant application as prayed.
6. I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the citations placed on record at the Bar.
7. The peculiar facts of the case do not let me to escape from the referral to section 86 of the Code (Cr.P.C.) which deals with the transitory remand of different districts of same province as well that of different province. The same reads as:-- "86. Procedure by Magistrate before whom person arrested is brought: (1) Such Magistrate or District Superintendent shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court.
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, or District Superintendent or a direction has been endorsed under Section 76 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, or District Superintendent shall take such bail or security as the case may be, and forward the bond to the Court which issued the warrant: [provided further that, if the offence is not bailable or no direction has been: endorsed under Section 76 on the warrant, the Sessions Judge of the sessions division in which the person is arrested may, subject to the provisions of Section 497 and for sufficient reasons, release, the person on an interim bail on such bond or security, as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court]
(2) Nothing in this section shall be deemed to prevent a police-officer from taking security under Section 76.
The perusal of the above provision makes it clear that the said provision deals with two different position (s) i,e,:--
(i) when the warrant is issued in a bailable section or direction for taking bond has been endorsed by the Court, issuing warrant, as provided in Section 76 of the Code;
(ii) when offence is non-bailable and no direction for taking bond has been endorsed by the Court, issuing warrant, as provided in Section 76 of the Code; For first, it is the Magistrate, as defined by Section 85 of the Code while in the later case, it is the Sessions Judge of the division wherein the accused is arrested, would be competent to release him on interim post arrest bail. The confirmation whereof or otherwise would be subject to satisfaction of the Court alone where the accused is to be produced/appeared. Reference to a case Fida Hussain v. State 2000 PCr.LJ 1022, being relevant, is made wherein it was observed as:-- "7. It has to be recorded that under the Proviso II to subsection (1) of Section 86 of the Code of Criminal procedure an accused can be admitted to interim post arrest bail by the Sessions Judge of the Sessions Division in which the person is arrested, to its satisfaction or to the satisfaction of any subordinate making bound the accused to appear before the court of law in other district of the same Province or any court of other District of other Province..."
However, since the order passed by IXth-Civil Judge and Judicial Magistrate, Karachi (West) whereby he rejected the transitory remand of Faisalabad police and the impugned order passed by Xth-Additional Sessions Judge, Karachi (West) have not been questioned or challenged by the Complainant as well as prosecution itself, therefore, it will be futile to discuss upon the legality of orders passed by the courts below.
8. As far as the prayer of the applicant made in present application is concerned, the contention raised requires consideration for simple feason the purpose and object of bail, even if it be interim post arrest of bail, is always to make the accused to face the trial by his appearance. Once, the Court is inclined to admit an accused to bail it (Court) must not make such 'admission to bail' by asking for an improbable or excessive surety amount. Thus, in view of factual position as well as citations placed on record by the applicant's counsel, I am of the considered view that the impugned orders have been passed in a mechanical manner. The learned Xth-Additional Sessions Judge, Karachi (West) has wrongly rejected the prayer of the applicant by imposing huge surety amount and subsequently reduction to surety amount was also declined.
9. In view of the above, instant application is allowed as prayed. The applicant shall be released forthwith on furnishing his solvent surety in the sum of Rs,500,000/- (Rupees Five Hundred Thousand only) and PR Bond in the like amount to the satisfaction of Xth Additional Sessions Judge, Karachi (West), Applicant, after furnishing aforesaid surety, shall appear before the Court of concerned Judicial Magistrate, Faisalabad (Punjab), being ultimate trial court which would be competent to decide the bail plea of the applicant/accused as per law without being influenced from bail grant order. The surety documents, if submitted by applicant for his release, would be sent to the court concerned which would be competent to proceed under section 514, Cr.P.C., if situation so arises.
10. Instant Cr. Mise. Application stands disposed of in the above terms.