SAMAN RAFAT IMTIAZ; J. Through the instant petition, the Petitioner Jahangir Khan s/o Abdul Nabi seeks pre-arrest bail in FIR No.28/2022 dated 14.01.2022 registered for the offence under section 489-F P.P.C. at Police Station Shalimar, Islamabad.
2. The case of the prosecution as per FIR is that the Complainant / Respondent No.2 gave S.K Baluchistan Hotel situated at F-10 Markaz, Islamabad to Jahangir Khan (Petitioner) and one Nadeem as Managing Partner in consideration of Rs. 650,000/- per month. For payment for the months of November and December, the Petitioner gave two cheques of Askari Bank bearing Nos. 01214832 and 01214833 dated 04.11.2021 & 05.12.2021 respectively in the amount of Rs. 650,000/- each to the Complainant. The said cheques were dishonored when presented before Askari Bank, F-10 Markaz, Islamabad, which caused damage to the Complainant's reputation and it was further alleged that they have not deposited the Complainant' s hotel bills since October .
3. Learned counsel for the Petitioner submitted that the cheques were not issued dishonestly. He referred to Clause 5 of the Restaurant Management Agreement dated 20.10.2021 and submitted that the Cheques were to be encashed only if cash was not paid by the Petitioner, whereas, as per learned counsel for the Petitioner payment was made in cash in the months of October, November and December, 2021 and the premises was vacated in January, 2022. He further submitted that there is no prior conviction or any pending FIR against the Petitioner.
Learned counsel for the Petitioner relied on Major Anwar-ul-Haq Vs. The State, PLD 2005 (Lahore) 607, Mst.
Mehjabeen Vs. D.P.O., 2009 PCr.LJ 173, Sardar Nisar Ahmed Vs. The State, 2011 YLR 1219 (Lahore), Muhammad Saleem Vs. The State, 2011 PCr.LJ 428 (Karachi), Raza Khan Vs. M. Abid Khan, 2014 YLR 90 (Peshawar), Zar Nasib Khan Vs. The State, 2018 YLR 443 [Peshawar (Mingora Bench)], Anees Ahmad Khan Vs. The State, 2020 PCr.LJ 268 (Islamabad), and Muhammad Nasir Shafique Vs. The State, 2021 SCMR 2092.
4. Conversely, learned counsel for the Complainant vehemently opposed the submissions made on behalf of the Petitioner. He submitted that receipt for the month of October is admitted by the Complainant, however, payment for November and December 2021 is outstanding to date which has resulted in the financial murder of the Complainant. It was further submitted that the Petitioner did not claim before the lower court that the cheques were guarantee cheques. He also alleged that Complainant did not participate in the investigation after obtaining ad-interim bail granted by the lower Court vide order dated 19.01.2022 which was later on recalled vide order dated 09.02.2022. He concluded by stating that the Petitioner is not entitled to the extra ordinary relief of pre-arrest bail.
Learned counsel relied upon Syed Zahoor-ul-Hassan Shah Vs. The State, 2021 PCr.LJ 886 (Sindh), Muhammad Ishaq Vs. The State, 2021 PCr .LJ 636 (Lahore).
5. The learned State Counsel, on the other hand, contended that the Petitioner has participated in the investigation and as such he did not oppose the grant of pre-arrest bail.
6. Heard arguments of learned Counsel for the parties as well as learned State Counsel and have also perused the police record submitted at the time of hearing.
7. Examination of the record shows that the Petitioner and the Complainant entered into a Restaurant Management Agreement dated 20.10.2021. The Petitioner handed over several cheques to the Complainant pursuant to such agreement, which according to the Petitio ner's counsel were to be encashed only if the Petitioner failed to make monthly payments in cash. Receipt of payment in cash for the month of October , 2021 has been admitted by the Complainant so also vacation of the demised property in January , 2022. Whethe r or not payment of rent for the months of November and December , 2021 was made by the Petitioner in cash as claimed is a matter for the Trial Court to determine. It is trite law that deeper appreciation is not permissible at the bail stage. For the purposes of this bail application suffice it to say that cheques have been tendered admittedly pursuant to Restaurant Management Agreement, therefore prima facie they have not been issued dishone stly, which is the basic element that is required to constitute of fence under Section 489-F P .P.C.
8. For what has been discussed above, this bail petition is accepted and the earlier ad-interim pre-arrest bail granted to the Petitioner, vide order dated 17.02.2022, is hereby confirmed, against the surety bond already furnished, however, the Petitioner shall join the investigation as and when required and appear before the Trial Court on every date of hearing without fail.
9. All the observations made hereinab ove are tentative in nature and shall have no bearing on the final determination of guilt or innocence by the trial Court.