Ajab Khan vs Muhammad Ramzan

2013 M L D 1493

[Peshawar]

Before Qaiser Rashid Khan, J

AJAB KHAN---Petitioner

Versus

MUHAMMAD RAMZAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.281 of 2012, decided on 28th February,

(a)Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque--- Application for cancellation of bail, dismissal of---Issuance of cheque denied---Cordial relations between the parties---Pendency of a recovery suit---Effect---Accused was alleged to have issued a cheque in favour of the complainant, which got dishonoured on presentation due to lack of funds---Accused denied issuing the cheque in question---Trial Court granted pre-arrest bail to accused---Validity---Record showed that complainant had given a loan to the accused due to cordial and friendly relations between the parties---Accused accordingly issued a cheque to the complainant for the amount with the understanding that in case of his failure to pay the loan amount, the cheque could be encashed by the complainant---Complainant had also instituted a recovery suit for a separate amount on basis of a pronote allegedly executed by the accused in his favour---Denial on part of accused regarding issuance of cheque, friendly relations between the parties and pendency of recovery suit with respect to another amount, made the matter one of further inquiry---Application for cancellation of bail was dismissed accordingly.

(b)Criminal Procedure Code (V of 1898)---

----S. 497(5)-Cancellation of bail---Grounds to be kept in view by the court.

Following grounds are to be kept in view by the court while cancelling bail granted to accused:--

(i)If the bail granting order is patently illegal and factually incorrect and has caused gross miscarriage of justice;

(ii)Some fresh facts or material has been collected by the prosecution which might lead towards the guilt of accused;

(iii)The accused has in any manner misused the concession of bail by indulging in another criminal act prejudicial to the interests of the complainant;

(iv)Accused has in any manner interfered with or attempted to tamper with the investigation and the prosecution evidence;

(v)Accused has hurled threats to the complainant or for that matter his witnesses;

(vi)Accused has abstained from joining the investigation or there is an apprehension of his abscondence from the scene; and

(vii)Whether the accused is a previous non-convict.

Nauman Gul for Petitioner.

Ahmad Ali Khan for Respondents.

Date of hearing: 28th February, 2013.

JUDGMENT

QAISER RASHID KHAN, J.---Aggrieved of the order dated 3-11-2012 passed by the learned Additional Sessions Judge-III, D.I.Khan whereby the accused/respondent Muhammad Ramzan was granted pre-arrest bail in case F.I.R. No.912 dated 5-10-2012 registered under section 489-F, P.P.C. at Police Station Cantt:, D.I. Khan, the petitioner/ complainant namely, Ajab Khan has filed this application for the cancellation of the same.

2.The allegations against the accused/respondent are that he issued a cheque bearing No.1400456 dated 20-6-2012 for an amount of Rs.5,70,000 in favour of the petitioner which on presentation was dishonoured by the concerned bank due to insufficient amount.

3.Learned counsel for the petitioner argued that the impugned order of the learned lower court granting pre-arrest bail to accused/ respondent is patently illegal and is thus liable to be set aside. He argued that from the available facts and circumstances of the case brought on record, the accused/respondent was reasonably linked with the commission of the offence and, therefore, he was not entitled to the extra-ordinary relief of pre-arrest bail. He submitted that there is no mala fide on the part of the complainant or the investigating agency to falsely implicate the accused/respondent in the case. The learned counsel thus requested for the cancellation of pre- arrest bail granted to the accused/respondent.

4.On the other hand, the learned counsel for the accused/ respondent supported the impugned order of granting pre-arrest bail on the grounds as enumerated therein.

5.The learned A.A.G on his turn also termed the impugned order to be in accordance with law.

6.Arguments heard and record perused.

7.As per the record, the petitioner had submitted an application to the DSP, Saddar, D.I.Khan to the effect that he was having cordial relations with the accused/respondent and the latter requested him for a loan of Rs.5,70,000 which was accordingly given by the petitioner keeping in view the friendly relations and the respondent had accordingly issued him a cheque for the said amount with the understanding that in case of his failure to pay the amount in question, the cheque could be encashed by the petitioner. On the failure of the accused/respondent to pay the loan amount, the petitioner deposited the cheque in his personal account which was not honoured on account of insufficiency of funds in the respondent's account. The petitioner has also instituted a recovery suit for a sum of Rs.6,70,000 on the basis of a pro note allegedly executed by the accused/respondent in his favour. Undoubtedly, there is no embargo on an individual to press into service both criminal as well as civil proceedings against an accused-cum-borrower, but the denial on the part of the accused/respondent regarding the issuance of cheque, friendly relations with the petitioner and the pendency of the recovery suit with another amount of Rs.6,70,000 take the matter to one of further inquiry and treated so by the learned lower court in the impugned order.

8.From the available facts and circumstances of the case and tentative assessment of the materials so far brought on record, case of the accused/respondent prima facie falls within the ambit of further inquiry and thus he was rightly held entitled to the grant of pre-arrest bail.

9.Even otherwise, the following grounds are to be kept in view by the court while cancelling the bail granted to an accused person:--

(1)if the bail granting order is patently illegal and factually incorrect and has caused gross miscarriage of justice;

(2)Some fresh facts or material has been collected by the prosecution which may lead towards the guilt of the accused;

(3)The accused has in any manner misused the concession of bail by indulging in another criminal act prejudicial to the interests of the complainant;

(4)He has in any manner interfered with or attempted to tamper with the investigation and the prosecution evidence;

(5)He has hurled threats to the complainant or for that matter his witnesses;

(6)He has abstained from joining the investigation or there is apprehension of his abscondence from the scene; and

(7)When the accused is a previous convict.

The above factors and elements are so far lacking in the instant case which would have warranted the cancellation of the concession of bail extended to accused/respondent by the learned Additional Sessions Judge-III, D.I.Khan.

10.For the reasons mentioned above, I find no substance in the instant bail cancellation /application which is hereby dismissed.

11.Any observations recorded in this order being tentative in nature should in no way prejudice the proceedings during the trial of the case.

MWA/141/P Petition dismissed.