Obaid Khan Vs the State & another

I

PESHAWAR HIGII COURT

MINGORA BENCH

(ludicial Deportment) CrM No.664-lvI/202i

ORDER

Date of hearing: 26.10.2023

- The subject order shall dispose

of application of the petitioner, Obaid Khan, for his release on bail, in case FIR No. 590 dated 20.07.2023, U/Ss 489-F/420 PPC, P.S, Ivlatta, Distict Swat.

2.Reportedly, the allegations against the accused/petitioner are that he handed over a cheque net worttr Rs.10,500,000/-to the complainant/ respondent, which on presentation to the bank concemed was dishonored for the want of insufficient funds in the drawer's account,

3.Arguments of leamed counsel for the parties as well as leamed AstI A.G. appearing on behalf ofState have been heard at a substantial length and the record gone through with their valuable assistance.

Nrv.b (S.8.) Hon'bt. Mr. Julicc Sbihld Khro

4.The record so fumished would reveal that the allegations against the accused/petitioner prima facie find its positive support from the cheque retum memo as it has been highlighted that the cheque in question retumed up-paid for the want of funds in the drawer's account. Likewise, the contents of the FIR speak in terms that the subject cheque was delivered to the complainant in the background of business relations.

Above all, during the investigation track record of the accused/petitioner is also tainted to the effect to have been involved in such like offence in the past, as such, the Court is not inclined to exercise its judicial discretion in favour of the accused/petitioner. In the case of "Shaneel Ahmad u/s The State" reported as 2U9 SCMR 174.the Apex Court has held as under;- ethat accured being lnvolved ln three previous casec of slmllar klnd was prlma fscie found to be r habltual ollender of issuing chequer ond defrrudlng the people.

Likewise, in case titled "Sved Hasnah

Haider u/s The State" reported as 2-gWMBJg!, the Apex Court refused the bail of the petitioner therein in somewhat similar circumstances.

5.Dwing the course of arguments, the learned counsel for the petitioner pressing hard that the punishment for the offence does fall within the prohibitory limb of section 497 Cr.P.C, as it entails the N.s.D (SB.) Hor'blc Mr. JNtlc. Shrhid Xhlt|

ri mardmum punishment of three yeaxs, however, it is well settled by the Apex Court in a good number of judgments that bail in such like offences, punishment of which do not fall within the prohibitory limb of section 497 Cr.P.C is not a rule of universal thumb, rather each & every case has its own facts & circumstances and shall be adjudicated upon on its own merits. [n case titled nMallk Muhanmad Tahir u/s The State &

anotherD rcported as 2-!ruPA!, the Apo< Court

has held as under;-

Although the offctrces under sections 40614681489-F, P,P,C. do not fall wlthln the prohlbitory clause of section 497, Cr,P.C but thls prlnclple b Dot rbsolute, rsther it dep€nds upon the frcts rtrd clrcumstances of each case,

Similarly, in the case of "Shameel t!@

v/s The State" reported ds /A!!_&MBJ/!, it was held by the Apex Court that;-

Gr.nt ol brll to rn rccused ln every case not hit by the prohlbltory clause of S.,197(l), Cr.P.C,, was not a rule of unlversal application, because each crle had to be derlt wlth on lts own fscB atrd clrcumstauceg. Court v$ted with such dlscretion could not ererclsc the srme ln an arbitrary, fanciful or perverse menner. If an order gnntlng thc bail had been obtained by accused after supprcsdng the detaik of vltrl lmportrnce, the srme could be crncclled by the Court which hed passed lt. Accused being involved in three prevloug csses of slmllar klnd was, primt facie, found to be I hrbltuil olfcnder of lssulng chequcs and defrsuding the pcople

6.Resultanfly, the subject application stands

dismissed. The subject observations recorded

hereinabove are purely tentative in its nature and shall no way prejudice an independent mind of leamed tial Court. However, the learned trial Court shall ensure early conclusion of the trial, preferably, within three NrrrD ($L) Ho!'blc Mr. Justlcc Shrhid KhrD

V months subject to the positive cooperation of the defence & prosecution to meet the ends ofjustice.

Date of announcement Dt: 26.10.2023

Khan Nrwrb (S.B.) Hon'ble Mr' Justice Shrhid