SADIQ MAHMUD KHURRAM, J.---Through this petition under section 498, Cr.P.C., the petitioner , namely Attique Ahmad, seeks pre-arrest bail in case FIR No.372 of 2020 dated 06.03.2020, registered at police station Naseerabad, District Rawalpindi, in respect of an of fence under section 489-F , P.P.C.
2. The allegation as against the petitioner , culled from the evidentiary material produced before the Court, is that the petitioner had allegedly drawn a cheque of the total value of Rs.62,00,000/- and issued the same to the complainant, which, on presentation before the concerned bank authorities, was dishonoured.
3. I have heard the arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General and perused the record with their able assistance.
4. This is a pre-arrest bail petition and only tentative assessment of the evidentia ry material produced before the Court can be made at this stage. It is discernable from the perusal of the FIR that the cheque which stands dishonoured was issued to the complainant in lieu of an agreement whereby if the cheque would be cashed, then the complainant would withdraw the suit for the specific performance as filed by him. The background of the narrative of the FIR as advanced by the learned counsel for the complainant is that initially the complainant had filed a suit under Order XXXVII, Rules 1 and 2 of the C.P.C., against the petitioner in lieu of dishonouring of another cheque, however , during the proceedings of said suit a compromise was effected between the parties and an agreement was signed on 08.11.2019 whereby the petitioner and complainant became partners having equal shares in the business running in the name and style of "Nabeel Ayaz Chicken Shop". Copy of the said agreement is also available on record and the learned counsel for the complainant has submi tted that the instant cheque has been issued with regard to the termination of the partnership between the complainant and the petitioner . A perusal of the agreement available on the record executed between the petitioner and the complainant reveals that the total value of the business has not been menti oned in the said agreement. The Investigating Officer, present before the Court, has also not collected any evidence so as to establish as to what was the total value of the business being run in the name and style of "Nabeel Ayaz Chicken Shop" and what amount was due by the petitioner to the complainant in case of termination of the partnership. In absence of such evidence, it cannot be discerned from the record as to why the cheque of an amount of Rs.62,00,000/- was issued to the complainant by the petitioner . The suit as filed by the complainant against the petitioner with regard to the specific performance of the agreement dated 08.11.2019 is still pending and it would be the learned trial court which would be in a better position to determine the rights and liabilities of the complainant and the petitioner with regard to the assets of the business previously being run in the name and style of "Nabeel Ayaz Chicken Shop" and at this stage, no such determination can be made in these proceedings. This Court has observed that as the Investigating Officer could not collect any evidence regarding the determination of the total value of the business which was being run by the petitioner and the complainant hence, the amount due to the complainant by the petitioner cannot be determined at this stage.
Dishonest issuance of the cheque, in absence of any proof regarding the amount due to the complainant by the petitioner , shall remain a moot point between the parties. According to the FIR the cheque had been issued to the complainant for the consideration that he would take back the suit as filed by him against the petitioner and not for repayment of a loan or fulfillment of any monetary obligation. Prima facie , the narrative of the FIR as it is bereft of the ingredients necessary to constitute an offence made punishable under section 489-F , P.P.C. The bare perusal of the FIR, as well as other evidentiary material available on record, does not disclose as to whether the cheque had been dishonestly issued by the petitioner for the repayment of a loan or fulfillment of any obligations. In absence of such evidence, the liability of the petitioner for the alleged offence made punishable under section 489- F, P.P.C. shall be better determined by the learned trial court after the recording of the evidence and at this stage, no opinion can be formulated. The Investigating Officer of the case submits that nothing is to be recovered from the petitioner . In view of these facts, the asse rtion of the petitioner that he has been involved in the occurrence due to mala fide and malicious intent is an assertion which cannot be said to be without basis and foundation at this stage.
The remedy of the complainant for recovery of the amount from the petitioner , in the circumstances, lies somewhere else in law and not through the registration of an FIR in respect of an offence under section 489-F , P.P.C. The prosecution case mainly is based on documentary evidence which has already been taken into possession by the Investigating Officer. Investigation of the case has D been concluded with respect to the petitioner and the versions of the petitioner as well as the complainant have already been verified by the Investigating Officer during the investigation of the case. Liberty of the citizens has always been jealously guarded by the Courts of law. Sending the petitioner behind the bars would not serve any useful E purpose and would cause irreparable loss to his reputation. Relianc e is placed on the case of "Khalil Ahmad Soomro and others v. The Stale" (PLD 2017 SC 730 ) wherein the following principle has been enunciated:- "Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/ materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide."
5. In view of the above discussion, this petition is allowed and ad-F interim pre-arrest bail already granted to the petitioner , by this Court,vide order dated 13.08.2020, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.500,000/- (Rupees five hund red thousand only) with two sureties each, in the like amount to the satisfaction of the learned trial court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court in any manner . Furthermore, the Investigating Officer of the case is directed to conclude the investigation of the case expeditiously and a further direction is' issued to the S.H.O. Police Station Naseerabad, District Rawalpindi, to submit the report under section 173, Cr.P.C. within the next ten days positively . Furthermore, the learned trial court is directed to conclude the trial of the case expeditiously preferably within a period of four months after taking the cognizance of the case. If any delay in the conclusion of the trial is caused by the petitioner or any person acting on his behalf, then the trial court shall be at liberty to, cancel the bail of the petitioner in accordance with the law. If the petitioner absents himself, then too the trial court shall be at liberty to cancel the bail of the said petitioner .