ALI BAIG, C.J. Through this single consolidated order, I intend to dispose of all the above titled petitions bearing C.M No. 298/2023, C.M No. 311/2023 and C.M No. 312/2023 as all the petitions have been filed by the petitioner/accused namely Syed Raza Farooq under section 497, Cr.P.C for grant of post arrest bail in three cases registered against him under section 489-F P.P.C. and common question of law and facts are involved in all aforesaid bail petitions.
2. It is pertinent to mention here that the name of petitioner in Cr. Misc. No. 311/2023 has been written as Ali Raza Shah son of Syed Farooq Zahid, whereas the name of the petitioner in Cr. Misc.
No. 298/2023 and Cr. Misc. No. 312/2023 has been mentioned as Syul Raza Farooq son of Syed Farooq Zahid. The learned counsel for the petitioner as well as the learned counsel for the complainant and learned DAG stated at bar that the name of the petitioner/accused is Syed Raza Farooq and his name was wrongly written as Ali Raza Shah in case FIR No. 178/2023 by the police, as such the learned counsel for the petitioner/accused has filed bail petition bearing No. Cr. Misc.
311/2023 in the name of Syed Ali Raza Shah in the light of aforesaid FIR. Perusal of record also shows that the father's name of petitioner/accused is Syed Farooq Zahid in all bail petitions as well in the FIRs, hence the name of the petitioner/accused in C.M No. 311/2023 is different as compare to other two bail applications, but the person is same in all aforesaid post arrest bail petitions.
3. It is also pertinent to mention here that the learned Sessions Judge, Gilgit as well as the learned Senior Civil Judge/Judicial Magistrate Gilgit have already refused bail to the present petitioner/accused in the above titled cases.
4. Through C.M No. 298/2023 filed under section 497, Cr.P.C, the petitioner/accused seeks post arrest bail in case FIR No.174/2023 registered under section 489-F, P.P.C. at Police Station City, Gilgit, wherein the allegation against the petitioner/accused is that on 11.09.2023, the petitioner/accused had dishonesty issued a cheque bearing No. CA-14169644 amounting to Rs.1,30,000/- of Soneri Bank NLI Market Gilgit Branch to the complainant namely Nisar Ali to pay the liability of rent of a plot, which was dishonoured on presentation before the concerned bank authorities due to lack of requisite balance in the account of petitioner/accused and stoppage of payment of aforesaid cheque.
5. Whereas through C.M No. 311/2023 filed under section 497, Cr.P.C. the petitioner/accused has sought post arrest bail in case FIR No. 178/2023 registered under section489-F, P.P.C. at Police Station City Gilgit, vide which the allegation against the petitioner/accused is that on 02/10/2023 the ,petitioner/accused had dishonestly issued a cheque bearing No. CA-64169643 amounting to Rs.900,000/- of Soneri Bank to the complainant namely Ubaid ur Rehman to pay the liability of a tractor transaction, and the said cheque was dishonoured on presentation before the concerned bank authorities due to insufficient balance in the account of the petitioner/accused.
6. In the third case i.e. FIR No. 175/2023 registered under section 489-F, P.P.C. at Police Station City, Gilgit, the petitioner has also sought post arrest bail through Cr. Misc. No. 312/2023 filed under section 497, Cr.P.C, whereby the allegation against the petitioner/accused as per contents of FIR is that on 29.08.2023 the petitioner/accused had dishonestly issued a cheque bearing No. CA- 64169642 amounting to Rs.307,000/- of Soneri Bank NLI Market Gilgit Branch to the complainant namely Sher Ali to fulfill the obligation of a business transaction, which was dishonoured on 29.09.2023 when the complainant presented it before the concerned bank authorities due to insufficient balance and stoppage of payment of aforesaid cheque.
7. The learned counsel appearing on behalf of the petitioner/accused argued that there is 18 days delay in lodging FIR No. 174/2023, and 30 days delay in lodging FIR No. 175/2023 which creates serious doubt on the part of complainants as well as local police. The learned counsel for the petitioner/accused further argued that the complainant has taken the impugned cheque on gun point .in case FIR No. 174/2023, whereas the petitioner/accused has not issued the said cheque to complainant Nisar Ali on his free will. The learned counsel for the petitioner/accused further argued that 489-F, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. The learned counsel for the petitioner/accused further argued that there is no written agreement between the complainants and the petitioner/accused in all the three cases and the complainants have failed to produce any document in this regard before the police as well as before this Court.
The learned counsel for the petitioner/accused further argued that no notice under section 30 of the Negotiable Instrument Act has been served on the petitioner/accused in all cases prior to lodging of FIRs which is mandatory under the relevant law. The learned counsel for the petitioner/accused further argued that the ingredients of section 489-F, P.P.C. i.e. fulfillment of an obligation and repayment of a loan are conspicuously missing in all cases. The learned counsel for the petitioner/accused further argued that all the matters pertain to civil liability as such the matters are civil nature for which the complainants may seek remedy from the Civil Court having competent jurisdiction. The learned counsel for the petitioner/accused further argued that the petitioner/accused is not previously convicted as such the petitioner is entitled for concession of bail in all the above titled cases. In support of his arguments, the learned counsel for the petitioner/accused has relied upon following judgments of superior Courts:
(i) PLJ 2008 Cr.C. (Lahore) 63
(ii) Judgment dated 02.09.2023 passed by this Court in Cr. Misc. No. 203/2023 titled "Aun Ali Shah v. State"
(iii) Order dated 26.08.2022 passed by this Court in Cr. Misc. No. 170/2022 titled "Ibrar Hussain v.
State"
(iv) Judgment dated 22.08.2023 passed by the Supreme Court of Pakistan in Cr. Petition No. 717/2023 titled "Zafar Nawaz v. State and others"
(v) 2020 YLR 1099
(vi) Judgment dated 30.05.2023 passed by this Court in Cr. Misc. No. 88/2023 titled "Amin Sher v.
State"
(vii) 2018 YLR Note 202 (viii)Judgment dated 07.10.2023 passed by this Court in Cr. Revision No. 11/2023 titled "Afsar Jan v.
State"
(ix) 2018 YLR Note 131 (x)Order dated 18.08.2023 passed by this Court in Cr. Misc. Nos.80/2023 and 84/2023
(xi) 2023 PCr.LJ 499
(xii) 2022 SCMR 592
(xiii) 2023 PCr.LJ 823
(xiv) 1998 PCr.LJ 821
(xv) 2022 PCr.LJ 146
(xvi) PLD 2006 Lahore 752
(xvii) 2011 SCMR 1708 (xviii) PLD 2013 Lahore 442
(xix) 2012 PCr.LJ 1858 (xx)Judgment dated 01.01.2020 passed by the Hon'ble Peshawar High Court in case titled Professor Akhtar Khan v. State
(xxi) 2018 YLR Note 140
8. On the other hand, the learned Dy. Advocate General assisted by learned counsel for the complainants controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the accused/petitioner has been directly charged in FIR No. 174/2023, FIR No. 178/2023 and FIR No. 175/2023 with specific role of issuing three cheques of different amounts dishonestly having the knowledge that there is insufficient balance in his account. The learned Dy. Advocate General assisted by the learned counsel for the complainants further contended that the petitioner/accused is habitual offender and his conduct is blemished on his character as he has issued three bogus cheques with dishonest intention. The learned Dy.
Advocate General and counsel for the complainants further contended that the petitioner/accused has issued all the three cheques to pay the liability of rent of a plot and transaction of a tractor, as such the essential ingredients- of 489-F, P.P.C. has been established.
The learned Dy. Advocate General and counsel for the complainants further contended that whenever a cognizable offence is committed, the police is, at liberty to lodge FIR under section 154, Cr.P.C, as such notice under section 30 of the Negotiable Instrument Act is not required in the instant cases. Lastly, the learned Dy. Advocate General and the learned counsel for the complainants contended that the trial of the accused/petitioner is in progress and the cases are fixed for prosecution evidence in the trial Court, hence the petitioner/accused is not entitled for concession of bail in all the three cases. In support of their arguments, the learned DAG and the learned counsel for the complainants have relied upon judgments of superior Courts reported as:
(i) 2017 YLR 694
(ii) (sic) 201 7 PCr.LJ 1189
(iii) 2016 MLD 1450
(iv) 2018 YLR 1554
(v) 2018 MLD 273
(vi) 2006 YLR 23
(vii) 2017 YLR 694
(viii) (sic) 201 7 PCr.LJ 1189
(ix) 2016 MLD 1450
(x) 2016 MLD 1450
9. I have heard arguments advances by the learned counsel for the parties and perused the available record of the case with their able assistance.
10. from perusal of record it transpires that the accused/petitioner is involved in three criminal cases registered under section 489-F, P.P.C. Admittedly, he has issued three cheques toabove named complainants which on presentation before the concerned bank declared bounced due to in sufficient amount in the account of the present petitioner/accused. No possibility of false implication of the petitioner or substitution or mistaken identity exist because he was known to the complainants. Accused/petitioner though is not convicted in any case previously, but his involvement in three cases of similar nature is sufficient to declare him habitual offender and apprehension existed that if he is released on bail, he could repeat the offence and there also exist apprehension that he would abscond after release on bail, as he belong to Manserah KPK.
11. It would not be incongruous to mention here that offence with which the petitioner/accused is charged, no doubt does not fall within the prohibitory clause of section 497(1), Cr.P.C. But it is not rule of law that in each and every case which is not punishable with death, imprisonment for life or ten years, bail must be granted to the accused without considering the gravity of the offence. It is settled principle of law that Courts could not be oblivious to the material collected by prosecution and after looking into it and making tentative assessment of evidence, if the Court would come to the conclusion that a prima facie case is made out Court could refuse bail even in cases which are not punishable with death, imprisonment for life or ten years.
12. For the foregoing reasons, the instant bail petitions being devoid of merit are hereby dismissed.
Certified true copy of this judgment be placed on Criminal Misc. No.311/2023 and Criminal Misc. No. 312/2023. File,