Rao Muhammad Yousaf vs Malik Nadeem

H.C.J.D/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE, LAHORE

JUDICIAL DEPARTMENT

Crl. Misc. No. 4641-CB of 2014.

Rao Muhammad Yousaf Vs Malik Nadeem, etc.

Appeal Revision against the decree or order (as the case may be) of ____________ S. No. of Date of order Order with signature of Judge, and that of parties or order of of proceeding counsel, where necessary. proceeding

07.04.2014. Rao Tassawar Ali, Advocate for the petitioner.

The petitioner has filed petition under section 497 (5) Cr.P.C for cancellation of post arrest bail granted to respondent No.1 by Mr. Arshad Hussain, Learned Additional Sessions Judge, Pakpattan vide order dated 06.02.2014 in case FIR No. 384/2013, dated 05.09.2013 offence under section 489-F PPC, at Police Station Chakbedi, District Pakpattan.

2.Briefly, the allegation against respondent No.1 as contained in the FIR is that the accused-respondent purchased fertilizer and the wheat from the petitioner- complainant and issued a cheque of amount of Rs.24,61,735/- bearing No. LA-00796872, account No. 03010023850803, HBL, Bonga Hayyat Branch, which was dishonored by the bank on its presentation.

3.The respondent/accused filed an application for pre-arrest bail which was dismissed by the learned Additional Sessions Judge, Pakpattan on 23.12.2013 and the respondent-accused was arrested on the same day. The application for post arrest bail filed by the accused-respondent No.1 was dismissed by the learned Magistrate Ist Class, Pakpattan on 17.01.2014.

Subsequently, the accused/respondent approached the learned Court of Sessions Judge, Pakpattan for his post arrest bail which was again entrusted to the same learned Additional Sessions Judge, Pakpattan who had dismissed his application for pre-arrest bail vide order dated 23.12.2013. The learned Additional Sessions Judge allowed the bail application moved by respondent on 06.02.2014, hence, the instant petition for cancellation of the same.

4.The learned counsel for the petitioner contends that after dismissing the application for pre-arrest bail of the accused-respondent, the same learned Court was not competent to allow his post arrest bail; that a huge amount is involved and that the accused-respondent has caused huge loss to the petitioner-complainant.

5.Heard. Record perused.

6.Be that as it may, it is deducible from the provisions of Section 497 Cr.P.C that in non-bailable offences which are punishable with imprisonment for less than ten years, the grant of bail is a rule and refusal an exception. In such cases bail is to be declined only in extra ordinary and exceptional cases where:

i)there is likelihood of absconding of the accused,

ii)there is apprehension of the accused tempering with the prosecution evidence, iii) there is danger of the offence being repeated if the accused is released on bail, iv) the accused is a previous convict.

The offence alleged against the accused-respondent carries maximum sentence of three years imprisonment which obviously does not fall under the prohibitory clause of section 497 Cr.P.C. Moreover, these are by now established propositions of law,

i)that the considerations for grant of pre- arrest bail and post arrest bail are different from each other,

ii)that when concession of bail once granted it should not be withdrawn lightly.

7.In this view of the matter, it cannot be said that the learned Additional Sessions Judge was not justified in granting the post arrest bail to the respondent. While relying upon 1994 PSC (Crl.) 931 titled “Tariq Bahsir and others vs. The State”, I do not find any reason to interfere in the impugned order, hence this petition for cancellation of post arrest bail of respondent No.1 is dismissed in-limine being misconceived.

(Syed Shahbaz Ali Rizvi) Judge

Approved for reporting

Judge Atiq A Nasir*