Muhammad Arshad vs State etc.

Muhammad Arshad. The State etc.

3.8.7.2013 Mr. Ahmad Saad Khan, Advocate for the petitioner. Mr. Muhammad Akhlaq, Deputy Prosecutor General with Muhammad Ashfaq, A.S.I. with record. Mr. Muhammad Zubair Khalid Chaudhry, Advocate for the complainant.

Through this petition, Muhammad Arshad petitioner has sought post arrest bail in case F.I.R. No.478 dated 1.9.2003 registered under section 489-F P.P.C. at Police Station South Cantt, Lahore.

2.In the F.I.R. it was stated that in a business transaction the petitioner issued a cheque bearing No.CD-875925 dated 8.3.2003 of Union Bank, Cavalry Ground, Lahore amounting to Rs.15,00,000/- to the complainant which was presented in the bank and the same was dishonoured as such the case was registered against the petitioner.

3.Learned counsel for the petitioner contends that the petitioner has been involved in this case falsely with malafide intention and ulterior motives in order to blackmail and pressurize the petitioner; that the cheque was issued by the petitioner as a surety in lieu of business transaction and in this respect an agreement was written between the parties on 6.2.2003; that the petitioner has nothing to do with the alleged offence; that the offence does not fall within prohibitory clause

of section 497 Cr.P.C.; that the investigation is complete and he is no more required for further investigation and as such the petitioner may be granted bail.

4.On the other hand, learned Law Officer assisted by learned counsel for the complainant has vehemently opposed the bail by submitting that the complainant has never entered in any agreement with the petitioner, said document is false one and allegedly prepared by the petitioner; that the cheque belongs to account of the petitioner and the same is duly signed by him; that the cheque was issued in respect of repayment of amount which was due towards the petitioner as he purchased rice from the complainant as such the petitioner has defrauded the complainant and deprived him of a huge amount; that the petitioner has been declared proclaimed offender on 29.11.2003 thus he remained proclaimed offender for more than 12 years; that the challan has been submitted in the court and the trial is in progress. Further adds that the petitioner is a habitual offender as he is involved in nine other cases of similar nature as such he is not entitled to any exception.

5.I have heard the learned counsel for the parties and have gone through the record. No doubt the parties had business relations with each other but the fact remained that there are nine other F.I.Rs which are registered against the petitioner in different police stations in respect of similar nature of offence and other cheques, allegedly issued by the present petitioner to different persons, are also shown to have

been dishonoured. The petitioner is named in the F.I.R. with specific role of issuing a cheque amounting to Rs.15,00,000/- to the complainant which was dishonoured which prima facie connects him with the commission of alleged offence, thus issuance of cheque is not denied by the petitioner. In a business deal, the petitioner had issued the cheque in respect of repayment of amount which was due towards the petitioner as such the petitioner has defrauded the complainant and deprived him of a huge amount. The complainant had denied any agreement between him and the petitioner. The actual beneficiary is the petitioner and the petitioner had failed to produce witnesses of the said agreement before the Investigating Officer. The petitioner has been declared proclaimed offender on 29.11.2003 thus he remained proclaimed offender for a period of more than 12 years. The petitioner who was involved as many as in ten cases of similar nature was prima facie found to be a habitual offender of issuing cheques and defrauding the people. The conduct of the petitioner is also relevant at the time of grant of bail, who had remained at large after registration of F.I.R. on 1.9.2003 till 12.1.2013 the date of his arrest and had not applied for bail before arrest in a period of more than twelve years nor had surrendered himself in any court of law. No doubt, grant of bail is discretion but the same could not be demanded as of right as each case has to be seen through its own facts and circumstances. Reliance has been placed on the case reported as Shameel Ahmed v.

The State (2009 SCMR 174) wherein it has been observed by the Apex Court:-

“---S. 497----Bail in a case not falling within the prohibitory clause of section 497, Cr.P.C.-----Principles----Grant of bail in cases not falling within the domain of prohibition clause of proviso to S.497, Cr.P.C. is not a rule of universal application----Each case has to be seen through its own facts and circumstances---Grant of bail, no doubt, is a discretion granted to a Court, but its exercise cannot be arbitrary, fanciful or perverse.”

The Court, however, is empowered to examine the material available on record which has been made the basis to accept or reject the bail. In the given circumstances, the petitioner is alleged to have been involved in the commission of a series of identical crimes under section 489-F, P.P.C. and repetition of the offence alleged, stigmatizes the petitioner with habituality and, therefore, constitutes an exceptional circumstances weighing against grant of bail. Prima facie, sufficient incriminating material is available on record against the petitioner which connects him with the commission of alleged offence.

6.For the foregoing reasons the petitioner does not seem to be entitled for the concession of post arrest bail and as such the same is hereby dismissed. However, the learned trial court is directed to decide the case expeditiously preferably within a period of two months.

(Aalia Neelum) Judge Approved for reporting.

Judge Hamid/*