MUHAMMAD TARIQ NADEEM, J.----Through this petition, the petitioner , namely , Khizar Hayat supplicates bail after arrest in case FIR No. 313 dated 21-07-2020 registered under section 489-F , P.P.C., at Police Station Civil Line, Lahore.
2. Succinctly , the facts of the case as spelt out from the contents of the FIR are that the petitioner has to pay an amount of Rs.8177251/- to the Nizami Feed (Pvt.) Ltd. Lahore and the company has authorized the complainant through its resolution for taking legal action against Khizar Hayat, petitioner . The petitioner issued cheque on 11-12- 2019 for the repayment of op-cit amount in the name of Nizami Feed (Pvt.) Ltd., which was presented in the bank on 24-12-2019, which was bounced due to insuf ficient funds.
3. I have heard the arguments advanced by the learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and perused the record minutely .
4. It has been noticed that according to the prosecution's own story cheque was dis-honoured on 24-12-2019 whereas the FIR was got registered on 21-07-2020 with the unexplained delay of almost 07 months. Inordinate delay qua registration of FIR clearly revealed that possibility of deliberation and consultation could not be ruled out.
5. That after scanning the record, it is crystal clear that at the time of registration of FIR, only photocopies of cheque and dis-honoured slip were produced and during the whole investigation, original documents i.e. cheque and dis-honoured slip were not produced. Furthermore, in the FIR, no time and place has been mentioned regarding issuance of cheque in favour of Nizami Poultry Feed (Pvt.) Ltd. That a sale agreement was executed on 17-10-2017 between the petitioner and Nizami Feed (Pvt.) Ltd. for the purchase of poultry feed. That business transaction is admitted between the parties and this fact has not been denied by the learned counsel for the complainant. The complainant party has produced copies of ledger prepared in his office, according to which an amount of R.s.81,77,251/- is outstanding in the name of petitioner , whereas the petitioner has submitted ledger issued by Nizami Feed (Pvt.) Ltd. Lahore from 01-05-2017 to 20-10-2019, which transpires that an amount of Rs.19584/- is outstanding against the petitioner . On 30-08-2020, the petitioner has submitted written application to the investigating officer with the assertion that he entered into agreement with the company on 01-05-2017 and he issued a cheque mentioned in the FIR as guarantee, which was a blank and without date. He further stated that in October , 2019 some differences arose between the parties because Nizami Feed (Pvt.) Ltd. supplied sub-standard feed to him. Subsequently , the petitione r requested the complainant party to return his guarantee cheque after receiving outstanding amount of Rs.19584/- but the Nizami Feed (Pvt.) Ltd. deferred the matter with one or another pretext. After going through the record, it transpires that the investigating officer has not conducted the investigation in this respect nor taken both the ledgers produced by the parties, in juxta-position to ascertain that which ledger is genuine. There is nothing on record to establish that the cheque in question was issued for repayment of any loan or fulfillment of any financial obligation, which is sine qua non to attract the provisions of Section 489-F , P.P.C. The offence under Section 489-F , P.P.C., is punishable for-three years, which does not fall within prohibitory clause of Section 497, Cr.P.C. It has vociferously been contended by the learned Deputy Prosecutor General assisted by learned counsel for the complainant that petitioner cannot claim bail as of right in non-bailable offence and has placed reliance upon the case titled as "Shemeel Ahmad v. The State" (2009 SCMR 174). In this context, it is observed that where a case falls within the ambit of non-prohibitory clause, the concession of bail be favourably considered and should only be declined in exceptional cases. No exceptional circumstance has been pointed out by the learned counsel for the complainant for the refusal of bail. Reliance is placed upon the following case laws, "Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others" (2020 SCMR 1268 ), "Muhammad Tanveer v. The State and another" (PLD 2017 Supreme Court 733), "Riaz Jaffar Natiq v.
Muhammad Nadeem Dar and others" (2011 SCMR 1708 ) and "Tariq Bashir and 5 others v. The State " (PLD 1995 Supreme Court 34).
6. Moreover , the cheque is a negotiable instrument falling within the domain of Order XXXVII of C.P.C., therefore registration of criminal case under the said offence is not to be used as a tool for the recovery of amount for which law provides a separate remedy under , the Civil Procedure Code, 1908. Reliance is placed upon the case law titled as "Qaiser Ali Khan v . The State and another" (2017 YLR Note 47).
7. It may further be noted that the case against the present petitioner is almost entirely reliant on documentary evidence which, admittedly is in the possession of the prosecution and there is no possibility of the petitioners tampering with the same. Keeping the petitioner incarcerated would tantamount to punishing him despite the fact that a person is presumed to be innocent until proven guilty . The Courts have invariably leaned favourably in the granting of bail when the case is defend ent upon documentary evidence and the same is in the possession of prosecution agency . Reliance in this regard is placed upon the cases titled as "Saeed Ahmed v. The State"
(1996 SCMR 1132) and "Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another"
(PLD 2008 SC 438). In the light of the facts and circumstances of the present case refusal of bail at this stage will tantamount to punishing the petitioner when his guilt is yet to be proved.
8. So far as the contention of learned Deputy Prosecutor General assisted by learned counsel for the complainant that petitioner is also involved in five other cases of similar nature, but no any convi ction order has been brought on the record against the petitioner . It is settled principle of law that mere registration of cases of similar nature against the petitioner is no ground to deprive him from the concession of bail. Reference is made to Qurban All v. The State and another ( 2017 SCMR 279 ) wherein it was held that, "...So far as the list of different criminal cases placed on record by the learned counsel for the complainant through C.M.A. No.486-L of 2016 registered against the accused side is general and petitioner Qurban Ali in particular is concerned, suffice it to observe, at this stage, this Court is only seized of the instant bail application and the effect/impact of the aforesaid criminal record against the petitioner and his co-accused is not relevant for disposing of the instant petition...."
9. It has also been argued by the learned Deputy Prosecutor . General assisted by learned counsel for the complainant that the petitioner being fugitive from law, has lost his right of claiming discretionary relief. It evinces from the record that the bail before arrest of the petitioner was dismissed from the court of learned Additional Sessions Judge, Lahore vide order dated 09 11.2020 and warrant of arrest were issued on 18-11-202, thereafter a report under section 512, Cr.P.C. was prepared on 11-12-2020. The petitioner filed bail before arrest in this Court on 15-12-2020, which was dismissed as withdrawn on 22-02-2021 and the petitioner was arrested in this case on 23-02-2021. These facts reveal that the Investigating Officer got declared the petitioner proclaimed offender in a hasty manner being in league with the complainant party . It is by now well settled that if a case falls within the remit of further inquiry , mere absconsion of accused will not be an impediment in the way of granting bail. Reliance is placed upon the cases titled as "Muhammad Sadiq v. Sadiq and others" (PLD 1985 SC 182), "Ibrahim v. Hayat Gull and others" (1985 SCMR 382), "Qamar alias Mitho v. The State and others" (PLD 2012 SC 222) and "Attaullah v . The State through A.G. Khyber Pakhtunkhwa and another" ( 2020 SCMR 451 ).
10. So far as the contention of the learned counsel for the complainant that report under Section 173, Cr.P.C., has been submitted before the learned trial court and trial is to be commenced in near future is concerned, it is also settled proposition of law that mere commencement of trial is no ground for refusal of bail if the case of accused falls under the ambit of further inquiry . My view is fortified by the judgment of Hon'ble Supreme Court in case titled as "Nisar Ahmad v . The State and others" ( 2014 SCMR 27 ).
11. In view of the above, the case of the petitioner has become one of further inquiry falling under subsection (2) of section 497, Cr.P.C. The petitioner is behind the bar since his arrest i.e. 23-02-2021 and he is no more required for further investigation. He has no antecedents of criminal activity and no more required by the police, hence, incarceration of the petitioner would not serve any useful purpose to the prosecution.
12. In the eventuality of above-said discussion, this petition is accepted and petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.
13. It is, however , clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition. Furthermore, it is expected that the learned trial court will conclude the trial expeditiously prefereably within four months after the receipt of certified copy of this Court's order .