ALI BAIG, C.J. The petitioner/accused has moved the instant bail petition under section 497, Cr.P.C for grant of post arrest bail in criminal case bearing FIR No. 55/2024 registered under section 489-F, P.P.C. at Police Station City Gilgit. Prior to filing this petition, the present petitioner had filed bail petition in the Court of learned Addl. Sessions Judge, Giglit, which was dismissed by the learned Addl. Sessions Judge Gilgit, vide order dated 07.10.2024 passed in B.A No. 129/2024, hence, this petition.
2. Briefly the allegation levelled against the petitioner/accused as disclosed in the FIR is that on 27.12.2023 the petitioner/accused had issued a cheque bearing No.1947849588 amounting to Rs.20,00,000/- of MCBL Gilgit Branch to the complainant in lieu of rent of hotel situated at Jamat Khana Bazar Gilgit. The cheque issued by the petitioner/accused was dishonoured by the Bank of Punjab Dar Plaza Gilgit due to insufficient balance in the account of the accused/petitioner. On written application of complainant, FIR No.55/2024 was registered against the accused/petitioner under section 489-F, P.P.C. at Police Station City Gilgit.
3. Learned counsel for the petitioner/accused submitted that the petitioner/accused has not issued any cheque regarding fulfillment of an obligation rather the cheque has been stolen from the counter of the hotel by the complainant, hence it is presumed that the complainant has put a fake signature of the petitioner on the cheque in question as such the accused/petitioner is entitled for grant of bail. The learned counsel for the petitioner/accused further argued that there is more than three months delay in lodging of FIR which shows mala fide on the part of complainant.
The learned counsel for the petitioner/accused further argued that there is a civil litigation pending before the Civil Court for recovery of disputed amount. The learned counsel for the petitioner/accused further argued that prosecution has failed to submit challan of the case before the Court of law even after of lapse of more than 9 months, which is violation of mandatory provision of section 173, Cr.P.C. The learned counsel for the petitioner/accused argued that section 489-R, P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C as such the petitioner is entitled for bail. The learned counsel for the petitioner/accused further submitted that there is no any written agreement between the petitioner/accused and the complainant regarding fulfillment of an obligation. The learned counsel for the petitioner/accused further argued that the petitioner is behind the bars for more than eight months without any trial. The learned counsel for the petitioner/accused further argued that the complainant has not issued any legal notice to the petitioner/accused prior to registration of FIR which was prerequisite to register the FIR. In support of his arguments, the learned counsel for the petitioner/accused has relied upon judgments/orders of this Court dated 04.03.2024 passed in Cr. Misc. No. 60/2024 titled "Waseem Abbas v. The State", order dated 26.08.2022 passed in Cr. Misc. No. 170/2022 titled "Ibrar Hussain v.
The State", order dated 30.01.2023 passed in Cr. Misc. No. 18/2023 titled "Basharat Hussain v. The State" and order dated 02.09.2023 passed in Cr. Misc. No. 20312023 titled "Aun Ali Shah v. The State."
4. On the other hand, the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the petitioner/accused has dishonestly issued a fake cheque to the complainant. The learned Dy. Advocate General further argued that the complainant has issued legal notice to the petitioner/accused but he failed to pay the disputed amount. The learned Dy. Advocate General further argued that the prosecution has submitted complete challan of the case before the Court of competent jurisdiction. The learned Dy.
Advocate General further argued that a huge amount is involved in the matter and it would be injustice to release the accused/petitioner on bail at this stage of proceedings. Prima facie prosecution has established its case through cogent documentary and oral evidence against the petitioner/accused, thus the petitioner/accused is not entitled for concession of bail. I have heard the arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.
6. From perusal of record it transpires that there is almost 3-1/2 months unexplained delay in lodging of the FIR. Challan against the accused/petitioner has yet not been ubmitted in the Court of competent jurisdiction despite lapse of more than 8 months of the registration of the FIR, which is violation of mandatory provisions of section 173, Cr.P.C. The petitioner/accuse is behind the bars for the last more than 8 months and there is no any progress regarding trial of case against the petitioner/accused, whereas maximum punishment under section 489-F, P.P.C. is three years.
Reportedly, the complainant has filed a suit against the petitioner/accused for recovery of the disputed amount, as such, the case of the petitioner/accused seems to be a civil nature.
7. Moreover, offence under section 489-F, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. It is settled principle of law that grant of bail in the offences not falling within the ambit of prohibitory clause of section 497, Cr.P.C. is a rule and refusal is an exception. Reliance in this regard can be placed on the reported judgments of the Hon'ble Apex Court of Pakistan reported as:
2. PLD 2017 SCP 733
3. 2011 SCMR 1700
8. For what has been discussed above, this bail petition is accepted and the petitioner/accused is admitted to post arrest bail subject to his furnishing of bail bonds in the sum of Rs. 2,00,000/- (Two lac) with two local solvent sureties each in the like amount to the satisfaction of learned trial Court.
File.