P L D 2009 Peshawar 28

Before Dost Muhammad Khan, J

HAYATULLAH---Petitioner

Versus

LAL BADSHAH and another---Respondents

Criminal Miscellaneous No.886 of 2008, heard on 26th September, 2008.

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

Page No. 1 of 10
----S. 497---Penal Code (XLV of 1860), Ss.302/34/148/149/427---Bail, grant of---
Except the bald statement of the complainant expressing satisfaction about the
involvement of accused, which was based on figment of his imagination
uncorroborated and unsupported by any shred of evidence, no evidence of any
nature was available involving accused in the crime---Mere heinousness of a
crime and charging of accused directly in the F.I.R., was no ground for refusal
of bail but the other materials collected during investigation exonerating him
from the crime would have direct bearing on the charge against him---
Magistrates and the Trial Judges, would discontinue the stereotype approach by
jumping at the conclusion that accused was directly charged in the F.I.R., they
should carefully read the provisions of S.497, Cr.P.C.---Bail was granted.

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

----S. 497(1) & (2)---Grant or refusal of bail---Principles---Legislature in its

wisdom had used the phrase "reasonable grounds for believing", which were
words of high degree, meaning and import of which were not to be taken
lightly---Bail could only be refused to an accused person, if sufficient material
had been brought on record, showing reasonable ground to believe him guilty of
an offence punishable with death or imprisonment for life or imprisonment for
ten years, while subsection (2) of S.497, Cr.P.C. created an exception to the
prohibition contained in the said subsection, which provided that if no
reasonable grounds existed for believing that accused had committed a non-
bailable offence, but there were sufficient grounds for further inquiry into his
guilt, accused would be released on bail---True line of distinction drawn by the
Legislature in both the provisions of S.497(1) & (2), Cr.P.C. could be
conveniently perceived by a judicial mind because in subsection (1) of S.497,
Cr.P.C. grant of bail to an accused person, who was charged for
offence/offences, not punishable with ten years imprisonment or more, was
discretionary with the court---Prohibition imposed on such discretion was with
regard to three categories of offences i.e. punishable with death or
imprisonment for life or imprisonment for ten years, but that prohibition too
was strictly qualified by the words, if reasonable grounds existed to believe that
an accused person had been guilty of such offence/offences---Trial Court in
circumstances, would take pain while deciding bail petitions and would not
decide it in a mechanical and routine manner, but with careful judicial
approach by making tentative assessment of all the material available on record
in each case and would not be deterred by the fact that the offence was of
heinous nature or because accused was directly charged in the F.I.R.---Deep
appreciation of evidence and drawing conclusions therefrom though was not
warranted, but tentative assessment of materials brought on record, including
the defence plea was a permissible course.

Page No. 2 of 10
Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413; Syed Ahmed
Ali Rizvi and another v. The State PLD 1995 SC 500 and Khalid Javed Gillani
v. The State PLD 1978 SC 256 ref.

Astaghfirullah Khan for Petitioner.

Niaz Ali Khan for the State.

Shaukat Ali Khan for the Complainant.

Date of hearing: 26th September, 2008.

JUDGMENT

DOST MUHAMMAD KHAN, J.---Petitioner seeks bail in case F.I.R. No.881

dated 30-11-2007 registered by Police Station, Katlang, Mardan for crimes
under sections 302/34/148/149/427, P.P.C. read with section 512, Cr.P.C.

Page No. 3 of 10
Arguments heard and record perused.

2. The complainant Lal Badshah reported the present occurrence on 30-11-2007

at 1330 hours stating that his deceased son Munawar Shah along with his wife
Gul Naz had gone to the house of in-laws and when were returning in a Pick-up
No.3099/IDS along with minor son Hussain they were killed in way near village
"Koz Miangan" and on receipt of information about the tragedy, he proceeded
there and found the three dead-bodies lying there along with the Pick-up. He
did not charge anyone nor suspected anyone for the crime.

3. During the course of investigation from the date of occurrence till 29-1-2008
no progress could be made and it was on 30-1-2008 that statement of the
complainant was recorded under section 164, Cr.P.C. by the Illaqa Magistrate
at the instance of the local police. The relevant portion of his statement runs as
follows:--

"Now I knew and satisfied that accused Hayatullah and Ikramullah alias Mini
sons of Amir Bacha along with other three unknown accused are involved in the
murder of my son, his wife and my grandson. Motive for the offence is that the
accused were dacoits and they were in search of their hunt and they signaled
the Shehzor truck in which the deceased were travelling for the purpose of
looting. and the Shehzor truck was not stopped. The above named
dacoits/accused opened firing and as a result of which they were hit in the
Shehzor Truck and were expired."

4. The present petitioner was already lodged in jail in another case F.I.R. No.17
dated 12-1-2008 under sections 302/324, P.P.C. thus on written request he was
handed over to the police by the' order of the Court.

Page No. 4 of 10
5. The petitioner has been refused bail by the Magistrate and the learned trial
Court, thus he has filed the instant petition.

6. Except the mere bald statement of the complainant expressing satisfaction

about the involvement of the accused which is based on figment of imagination
uncorroborated and unsupported by any shred of evidence. Indeed there is no
evidence of any nature involving the petitioner in the crime. Mere heinousness
of a crime is no ground for refusal of bail and equally accused charged directly
in the F.I.R. but the other materials collected during investigation exonerating
him from the crime would have direct bearing on the charge against him,
therefore, the Magistrates and the learned trial fudges shall discontinue the
stereo type approach by jumping at the conclusion that the accused is/are
directly charged in the F"I.R. They should carefully read the provisions of
section 497, Cr.P.C. and for their guidance subsections (1) and (2) of section
497, Cr.P.C. are reproduced below:--

"S. 497. When bail may be taken in case of non-bailable offence.--(1) When any
person accused of any non-bailable offence is arrested or detained without
warrant by an Officer-in-charge of a police-station, or appears or is brought
before a Court, he may be released on bail, but he shall not be so released if
there appear reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life or imprisonment for ten
years.

(2) If it appears to such officer or Court at any stage of the investigation,

inquiry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilt, the accused shall,
pending such inquiry, be released on bail, or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties for his appearance as
hereinafter provided.

Page No. 5 of 10
7. The legislature in its wisdom has used the phrase "reasonable grounds for
believing" which are words of high degree, meaning and import, the same are
not to be taken lightly. Bail can only be refused to an accused person if
sufficient materials have been brought on record showing reasonable, ground to
believe that the accused is guilty of an offence punishable with death or
imprisonment for life or imprisonment for 10 years' while subsection (2) creates
an exception to the prohibition contained in the above subsection which
provides that if there are no reasonable grounds for believing that the accused
has committed a non-bailable offence but there are sufficient grounds for
further inquiry into his guilt the accused shall be released on bail.

8. The true line of distinction drawn by the Legislature in both the provisions
cited above can be conveniently perceived by a judicial mind because in
subsection (1) grant of bail to an accused person who is charged for
offence/offences not punishable with 10 years imprisonment or more is
discretionary with the Court. The prohibition imposed on such discretion is
with regard to three categories of offences i.e. punishable with death or
imprisonment for life or imprisonment for 10 years but this prohibition too is
strictly qualified one by the words if reasonable grounds exist to believe that an
accused person has been guilty of such offence/offences.

9. The learned Sessions Judges who are ordinarily the trial Courts for such
offences do not observe reasonable care while dealing with bail matters
conveniently ignoring that they in the process deal with the liberty of a citizen
and in cases where bail can be granted as of right they carelessly refuse bail
being influenced by the heinous nature of the crime or because the accused is
directly charged in the F.I.R. without adverting to the entire data/materials
collected during investigation and to make tentative assessment thereof to
ascertain reasonability of the grounds connecting or exonerating the accused
thus, in genuine cases bail is refused to the accused unnecessarily taxing the
High Court with extra work to do. In the case of Hafiz Khuda Bakhsh and
another v. The State PLD 1988 SC 413 the Hon'ble Supreme Court has held
that suspicions howsoever strong might be would not amount to a reasonable
grounds and in a similar way the apex Court in the case of Syed Ahmed Ali
Rizvi and another v. The State PLD 1995 SC 500 has held that when an accused
person becomes entitled to grant of bail then grant of bail is not a favour but
becomes right of an accused person which cannot be refused on any other
ground muchless hypothetical one.

Page No. 6 of 10
10. The learned trial Courts shall, therefore, take pain while deciding bail
petitions and shall not decide it in a mechanical and routine manner but with
careful judicial approach by making tentative assessment of all the materials
available on record in each case and shall not be deterred by the fact that the
offence is of heinous nature or because the accused is directly charged in the
F.I.R. In the case of Khalid Javed Gillani v. The State PLD 1978 SC 256 it was
held by the apex Court that although deep appreciation of evidence and
drawing conclusions therefrom is not warranted but tentative assessment of
materials brought on record including the defence plea is permissible course
thus, we expect of the learned Sessions Judges to fairly attend to the facts of
each case in the matter of bail and in the light of guiding principles after
making tentative assessment of the facts have to grant or refuse bail but in no
manner they shall act in vacuum or in a routine manner as we have noticed
with concern in so many cases.

For what has been discussed above, this petition is allowed and the petitioner is
granted bail on furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five
lacs) with four local reliable sureties each in the like amount to the satisfaction
of the trial Court/Illaqa/Duty Judicial Magistrate with further direction that at
the time of attestation of bail bonds, the Court shall satisfy itself that the
sureties are not only financially sound but are also reliable and local.

Detailed reasons for short order of the even date.

The Additional Registrar (Judicial) shall circulate this judgment to all

concerned.

H.B.T./192/P Bail
granted.

Page No. 7 of 10
2007 Y L R 1805

[Lahore]

Before Sh. Javaid Sarfraz, J

Mst. RAZIA BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9188 of 2006, decided on 11th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497 [as amended by Criminal Law Amendment Ordinance (XXXV of

2006)]---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---
Bail, grant of---Accused who was a woman, was accused of offence under S.10 of
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which, in the light of
Criminal Law Amendment Ordinance, 2006, would be treated as bailable relating to
accused as the offence against her did not relate to terrorism, financial corruption
and murder---Grant of bail, in bailable offences, was a right of accused and not a
grace from the court---Accused having made out case for grant of bail, she was
admitted to bail.

Zafar Iqbal Chohan for Petitioner.

Ijaz Ahmad Bajwa for the State.

ORDER

SH. JAVAID SARFRAZ, J.--Through this petition, the petitioner, Mst. Razia Bibi,
seeks post-arrest bail in case bearing F.I.R. No. 560 of 2006, dated 5-8-2006, under
section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979,
registered at Police Station, Saddar, Hafizabad, at the instance of complainant Mst.
Farzana Bibi daughter of Muhammad Ashraf.

2. Learned counsel for the petitioner submits that the petitioner has falsely been
involved in this case and the complainant is her real daughter, that humanly it is not
possible for a real mother to force here own daughter to enter into prostitution and
sell her and that it is on the mala fide of petitioner's sister that this case has been got
registered. Further submits that in the light of the amendment in section 497, Cr.P.C.
vide Ordinance No.XXXV of 2006, promulgated on 8th November, 2006, all the
offences relating to women except terrorism, financial corruption and murder and
such offence punishable with death or imprisonment for life or imprisonment for ten
years, shall be treated as bailable offences, therefore, the petitioner is entitled to the
grant of bail.

3. Learned State counsel has vehemently opposed this bail petition.

4. The petitioner is an accused of offence under section 10 of the Offence of Zina

(Enforcement of Hudood) Ordinance VII of 1979, which in light of the Ordinance
No.XXXV, promulgated on 8th November, shall be treated as bailable relating to the
present petitioner as the offence does not relate to terrorism, financial corruption
and murder. In bailable offences, grant of bail is a right of the accused' and not a
grace from the Court. Under the circumstances, the petitioner has 'made out a case for
the grant of bail.

Page No. 8 of 10
5. For what has been discussed above, while accepting this petition, the petitioner is
allowed bail subject to her furnishing bail bonds in the sum of Rs.30,000 with one
surety in the line amount to the satisfaction of learned trial Court.

H.B.T./R-7/L Bail granted.

Page No. 9 of 10
2007 Y L R 1672

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ASLAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1514-B of 2006, decided on 27th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(ii), 506, 148 & 149---Bail, grant of---
Delay of seven days in lodging F.I.R.--false involvement of accused could not be ruled
out, particularly when there was litigation pending between the parties regarding "Ehata"
in question where occurrence had taken place---Section 337-H(ii), P.P.C. was a bailable
offence, whereas provisions of S.506, P.P.C. were not, prima facie, attracted to the case of
accused---Offences against accused were not punishable with death, transportation for
life or with ten years---No empty had been recovered from the spot; which had further
made the prosecution case doubtful as according to F.I.R., extensive aerial firing was
made by accused---No recovery had been effected from accused and co-accused had
already been granted bail by the Trial Court---In view of rule of consistency, accused
were also entitled to the concession of bail as the role assigned to co-accused was
identical to one assigned to accused---Accused were behind the bars since 30-3-2006 and
apparently no progress had been made in the trial---Tentative assessment of the evidence
on the record had revealed that prima facie no sufficient evidence was on record to
connect accused with the commission of alleged offences---Accused were admitted to
bail, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Tahir Mehmood and Muhammad Khalid Ashraf Khan for Petitioners.

Page No. 1 of 3
Ahmad Raza for the Complainant.

Abdul Hameed Khokhar for the State.

ORDER

TARIQ SHAMIM, J.---Through this petition, the petitioners seek bail after arrest
in the case F.I.R. No.186 of 2005, 'dated 21-6-2005 for offences under sections
506/337-H(ii)/148/149, P.P.C. registered at Police Station Mitroo, District Vehari.

2. The brief fact of the case are that on the day of the occurrence the petitioners and
their co-accused while armed with different weapons trespassed into the "Ehata" of
the complainant and resorted to aerial firing after extending threats of dire
consequences and on the arrival of Muhammad Ashraf and Muhammad Zafar P.Ws.
the petitioners and their co-accused left the place of occurrence.

3. Learned counsel for the petitioners contended that the case was investigated by
the local police as well as the D.S.P. (Investigation) who directed the S.H.O. to
prepare cancellation report. However, the investigation was transferred to D.S.P.
(Investigation) Headquarter who after a thorough probe deleted sections 379 and
452, P.P.C. hence the case against the petitioners was doubtful; that no empty has
been recovered from the spot which further belies the prosecution story; that co-
accused of the petitioner namely Abdul Hayee has been granted bail by the learned
trial Court and keeping in view that all the accused have been assigned same role,
under the law of consistency, the petitioners are also entitled to the concession of
bail; that no recovery has been effected from Akram petitioner; that offences
punishable under sections 506/337-H(ii), P.P.C. are not hit by the prohibitory clause
of section 497, Cr.P.C. and the rule laid down by the Hon'ble Supreme Court in
such-like cases is fully applicable. Further contended that the only role assigned to
the petitioners is of ineffective firing and no one was injured from the complainant
side hence the case of the petitioners is one of further inquiry and they are entitled
to the concession of bail.

4. On the other hand, the learned counsel appearing on behalf of the State assisted
by the learned counsel for the complainant contended that the petitioners were
nominated in the F.I.R. and specific role had been assigned to them; that 'after the
occurrence the petitioners absconded; that the challan has been submitted and
charge has been framed in the case. Further that the weapons of offence have been
recovered from Aslam and Abdul Rauf petitioners as such they are not entitled to the
concession of bail.

5 & 6. I have heard the learned counsel for the parties and perused the record.

Page No. 2 of 3
7. Admittedly, there is delay of seven days in lodging of the F.I.R. and on account
thereof false involvement of the petitioners cannot be ruled out particularly as there
is litigation pending, between the parties regarding the "Ehata" in question where
the occurrence took place. The D.S.P. (Investigation) after investigating the case had
recommended cancellation of the case however, on re-investigation, the D.S.P.
(Investigation) Headquarter deleted section 379 and 452, P.P.C. whereafter only
sections 506 and 337-H(ii), P.P.C. remain against the petitioners. Section 337-H(ii),
P.P.C. is a bailable offence whereas the provisions of section 506, P.P.C. are not
prima facie attracted to the case of the petitioners. In any case the offences are not
punishable with death, transportation for life or with ten years hence the dictum laid
down by the Hon'ble Supreme Court in the case of Tariq Bashir v. The State (PLD
1995 SC 34) is fully attracted to the case of the petitioners. Further no empty has
been recovered from the spot which further makes the case of the prosecution
doubtful as according to the F.I.R. extensive aerial firing was done by the
petitioners. No recovery has been effected from Akram petitioner and the co-
accused namely Abdul Hayee has already been granted bail by the learned trial
Court hence keeping in view the rule of consistency, the petitioners are also entitled
to the concession of bail as the role assigned to the said Abdul Hayee is identical to
the one assigned to the petitioners. The petitioners are behind the bars since 30-3-
2006 and apparently there is no progress in the trial. A tentative assessment of the
evidence on the record reveals that prima facie Connection is not enough evidence
on the record to connect the petitioners with the commission of the alleged offences.

7-A. Resultantly, this petition is allowed and the petitioners are admitted to bail
subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety
each in the like amount to the satisfaction of the trial Court.

H.B.T./M-219/L Bail
granted.

Page No. 3 of 3
2007 Y L R 1810

[Lahore]

Before Tariq Shamim, J

SHAHID AZIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6426-B of 2006, decided on 21st August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Bail before arrest, confirmation

of---Delay of one month in lodging F.I.R., having not been explained, false
involvement of accused in the case could not be ruled out---Business dispute between
the parties having not been denied, it could not be said that cheque in question was
given by accused for payment of loan or fulfilment of obligation which was a
condition precedent for attracting provisions of S.489-F, P.P.C.-Accused had denied
having signed the cheque in question which was affirmed by the report of Forensic
Science Laboratory---No recovery had to be effected from accused as the cheque in
question had already been taken into possession by the police during investigation---
Report of the Bank Manager also supported the stand taken by accused that he had
neither issued cheque in favour of complainant nor signed the same---Bank Manager
in his report had submitted that signature on the cheque did not tally with the
signatures on the signature card of the said account---Offence under S.489-F, P.P.C.
being punishable with a maximum sentence of 3 years, same did not fall within the
prohibitory clause of S.497, Cr.P.C.---Since 'investigation was complete, sending
accused behind the bars at this stage would not serve any useful purpose---Accused
having made out a case for the grant of pre-arrest bail, ad interim pre-arrest bail
already granted to him was confirmed.

Ali Murtaza v. The State 2005 PCr.LJ 1773; Safdar Hussain v. The State 2005 YLR
1607 and Subedar Fazal Hussain v. Qazi Muhammad Basher and 12 others PLD
1989 SC (AJ&K) 89 ref.

Muhammad Ghani for Petitioner.

Aftab Rahim for the Complainant.

Page No. 1 of 3
S.D. Qureshi for the State with Abdul Ghafoor, S.-I. with record.

ORDER

TARIQ SHAMIM, J.---Through this petition the petitioner seeks bail before arrest
in case F.I.R. No.1147, dated 28-10-2005 for offence under section 489-F, P.P.C.
registered at Police Station, Jaranwala, District Faisalabad.

2. The brief facts of the case are that the petitioner is alleged to have issued a
cheque 'in the sum of Rs.5,80,000 in favour of the complainant which on
presentation to the bank was dishonoured.

3. The learned counsel for the petitioner contended that the petitioner and the
complainant had joint business and on account of a business dispute the complainant
had falsely involved the petitioner in the case with mala fide intention; that there
was delay in lodging of the F.I.R. which had not been explained; that the petitioner
denied having issued any cheque in favour of the complainant, hence, the matter
was referred to the Forensic Science Lab., which gave a report in favour of the
petitioner and against the complainant; that the report of the Bank Manager, which
was on the record of the police, also revealed that the signatures of the petitioners
did not tally with the signature on the record of the account in question; that no
recovery had to be effected from the petitioner who had joined the investigation and
was no more required by the police for any further investigation; that the
complainant was involved in a number of cases for offence under section 489-F,
P.P.C. and that since the offence did not fall within the prohibitory clause of section
497, Cr.P.C. as such the petitioner was entitled to the concession of pre-arrest bail.

4. On the other hand the learned counsel appearing on behalf of the State assisted by
the learned counsel for the complainant contended that the petitioner was nominated
in the F.I.R. and specific role of dishonestly issuing the cheque in favour of the
complainant was assigned to him; that the petitioner had deliberately committed
fraud with the petitioner and that the amount in question had yet to be recovered
from him. Lastly contended that the report of Forensic Science Lab., showed some
points of similarity in the signatures of the petitioner on the cheque and the
document sent for comparison, hence, in view thereof the petitioner was not entitled
to the extraordinary concession of pre-arrest bail.

5. I have heard the learned counsel for both the parties and perused the record.

6. There is a delay of one month in lodging of the F.I.R. which has not been
explained on account of which false involvement of the petitioner in the case cannot
be ruled out. A business dispute between the parties is not denied, hence it cannot be
said that the cheque was given by the petitioner for repayment of loan or fulfilment of
an obligation which is a condition precedent for attracting the provisions of section
489-F, P.P.C. The petitioner had denied having signing the cheque in question which
is affirmed by the report of the Forensic Science Lab. No recovery has to be effected
from the petitioner as the cheque in question has already been taken into possession
by the police during investigation. The report of the Bank Manager also supports the
stand taken by the petitioner that he had neither issued the cheque in favour of the
complainant nor signed the same. The Bank Manager in his report submitted that the
signature on the cheque did not tally with the signatures on the signature card of the
said account. A visual comparison made by the Court also shows remarkable different
in signatures of the petitioner on the cheque and the signature card. In any case the
offence under section 489-F, P.P.C. is punishable with a maximum sentence of 3
years, hence, the same does not fall within' the prohibitory clause of section 497,
Cr.P.C. Since the investigation is complete, as such sending the petitioner behind bars
at this stage would not serve any useful purpose. Reference is made to the case of
2006 Ali Murtaza v. The State (2005 PCr.LJ 1773), Safdar Hussain v. The State (2005

Page No. 2 of 3
YLR 1607) and the case of Subedar Fazal Hussain v. Qazi Muhammad Basher and 12
others (PLD 1989 SC (AJ&K) 89).

7. For what has been discussed above the petitioner has made out a case for the grant
of pre-arrest bail, resultantly, this petition is accepted and the ad interim pre-arrest
bail granted to the petitioner vide order dated 9-8-2006 is confirmed subject to his
furnishing fresh bail bond in the sum of Rs.50,000 with one surety in the like amount
to the satisfaction of the trial Court.

H.B.T./S-82/L Bail confirmed.

Page No. 3 of 3
2007 Y L R 1796

[Lahore]

Before Muhammad Muzammal Khan, J

KHALID SAJJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7062-B of 2006, decided on 25th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Bail before arrest, refusal of---
Accused could not substantiate his submissions of investment of any amount by
complainant for trading in the Stock. Exchange or re-payment by him of the amounts
given by complainant---No documentary proof was available with accused that he had
issued the cheques in question, in advance to complainant---Counsel for accused
attempted to argue that complainant owed an amount of Rs. 20,00,000 and he had already
filed a suit for its recovery against complainant, but pendency of suit would not give a
licence to accused to issue fake cheques of considerable huge amount of Rs. 41,00,000,
one after the other---All cheques by accused were dishonoured which had in it element of
deliberate cheating---Prosecution had collected sufficient incriminating evidence in form
of statements of prosecution witnesses under S.161, Cr. P. C., besides documentary
evidence in form of Bank Memos.---Accused had not joined police investigation,
despite direction in that behalf---Accused had been named and assigned specific role in
F.I.R. and was prima facie connected with the offence charged---No case for
confirmation of bail before arrest, having been made out interim bail before arrest
granted to accused, was recalled.

Ms. Rabbiya Bajwa for Petitioner.

Atar Mehmood for the Complainant.

Shoaib Zafar for the Sate along with M. Majeed, S.-I.

ORDER

MUHAMMAD MUZAMMAL KHAN, J.---Petitioner was refused bail before

arrest by the learned Additional Sessions Judge, on 18-4-2006, in case against him
vide F.I.R. No.137, dated 10-3-2006, under section 489-F, P.P.C. registered with
Police Station, Islampura, Lahore. He, thereafter, filed instant petition for the same
relief and was conferred interim bail before arrest on 12-9-2006.

2. Charge against the petitioner is that he issued seven fake cheques, total value of
those was Rs.41,00,000, which on presentation, to the drawee Bank, were
dishonoured.

3. I have heard the learned counsel for the parties and have examined the police
record. Petitioner could not substantiate his submissions of investment of any
amount by the complainant for trading in the Lahore Stock Exchange or re-payment
by him of the amounts given by the complainant. Similarly, there is no documentary
proof with the petitioner that he had issued the cheques in question, in advance to
the investment made by the complainant. The learned counsel for the petitioner
attempted to urge that complainant owes an amount of Rs.20,00,000, and he has
already filed a suit for recovery against the complainant, but pendency of the suit
would not give a licence to the petitioner to issue fake cheques of considerable huge
amount of Rs.41,00,000, one after the other. All the cheques by the petitioner were

Page No. 1 of 2
dishonoured which has in it, the element of deliberate cheating. Prosecution has
collected sufficient incriminating evidence in form of statements of prosecution
witnesses under section 161, Cr.P.C. besides documentary evidence in form of bank
memos. The petitioner has not joined police investigation, in spite of direction in
this behalf. He ants been named and assigned specific role In the F.I.R. and is prima
facie connected with the offence charged.

4. For the reasons noted above, no case for confirmation of bail before arrest was
made out and accordingly instant petition is dismissed. Interim bail before arrest
granted to the petitioner on 12-9-2006 is re-called.

H.B.T./K-4/L Bail refused.

Page No. 2 of 2
2007 Y L R 1378

[Lahore]

Before Muhammad Jehangir Arshad, J

SHAHZAD WASEEM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3874-B of 2006, decided on 19th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Cheque

in dispute was never issued by any of the accused persons, but was issued by the
brother of co-accused---Ad interim pre-arrest bail earlier granted to accused was
confirmed in circumstances.

Ch. Shehzad Aslam for Petitioners.

Syed Kashif Abbas Gillani for the Complainant.

Sh. Imtiaz Ahmad for the State and Rehmat Ali, A.S.-I. with Record.

ORDER

MUHAMMAD JEHANGIR ARSHAD, J.---Petitioners seek pre-arrest bail in case

F.I.R. No.429 dated 24-11-2006 under section 489-F, P.P.C. Police Station, City
Shujaabad.

2. It is submitted that in fact the cheque in question was issued by one Faisal brother of
Farrukh petitioner No.2. Learned counsel for the complainant also submits that in fact
their grievance was against Faisal who had issued the cheque but the police in order to
save the main culprit started interrogating the petitioners who have nothing to do with the
cheque in dispute.

3. Since the Cheque in dispute was never issued by any of these petitioners and was in
fact issued by Faisal, therefore, ad interim pre-arrest bail earlier granted to the petitioners
is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000
each with one surety each in, the like amount to the satisfaction of learned trial Court.
The A.S.I., present in Court, is directed to ensure that Faisal who has in fact issued the
cheque in dispute is joined with the investigation and investigation is carried out strictly
in accordance with law.

H.B.T./S-39/L Bail confirmed.

Page No. 1 of 1
2006 Y L R 1305

[Lahore]

Before Tariq Shamim, J

ISRAR-UL-HAQ---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1711/B of 2006, decided on 27th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 506---Ad interim pre-arrest bail,
confirmation of---Matter essentially was one of civil nature as same related to business
dealings between accused and complainant---Mala fides of complainant were obvious
from the fact that S.H.O. concerned was one of the defendants in the civil suit filed by
accused which was prior in time to F.I.R.---Co-accused had already been granted bail by
the Trial Court---Accused was also entitled to confirmation of his bail before arrest---
Possibility of F.I.R., being lodged out of ulterior motive by the complainant, could not be
ruled out---Civil litigation, though was no bar to criminal proceedings which could
continue simultaneously, nevertheless one would get the impression that F.I.R. had been
lodged in order to pressurize accused through criminal process---Offences mentioned in
F.I.R. being not hit by prohibitory clause of S.497, Cr.P.C., grant of bail was a rule
and refusal was an exception---Delay of three months in lodging F.I.R. also reflected
negatively on the entire prosecution case---Accused had only extended verbal threats on
telephone which would not attract provisions of S.506 Part-II, P. P. C. ---Offence of
accused would fall within the ambit of S.506-Part-I, P.P.C. which was a non-cognizable
offence for which punishment of two years was provided and same was bailable---
Sufficient evidence was not on record to connect accused with commission of offence
alleged against him---Bail was confirmed.

Gulsher v. The State 2000 PCr.LJ 142; Ubedullah v. The State 2003 PCr.LJ 1921 and
Tariq Bashir v. The State PLD 1995 SC 34 ref.

Muhammad Akbar Khan for Petitioner.

S.H. Shehzad Azmat for the Complainant.

Badar Munir Malik for the State with Ijaz Ahmad, A.S.-I.

ORDER

TARIQ SHAMIM, J.---The petitioner is an accused in case F.I.R. No.982 of 2005 dated
28-12-2005 registered at Police Station, Nawan Kot, Lahore under sections 406/506,
P.P.C. The allegations against the petitioner are that he and his brother, namely, Abrar ul
Haq took some furniture from the complainant in order to sell the same at their business
point being carried out by them under the name and style of 'NILAAM GHAR' on the
condition that the settled purchase price would be paid to the complainant after selling the
furniture. The petitioner after obtaining furniture neither paid the purchase price in
respect thereof nor returned the furniture to the complainant. On demand for the return of
the furniture on account of non-payment of the purchase price the accused threatened the
complainant with dire consequences on the telephone.

2. It is contended by the learned counsel for the petitioner that the petitioner and his
brother have paid the entire purchase price of the furniture obtained by them from the
Page No. 1 of 1
complainant and that no amount is outstanding against them. The F.I.R. has been got
registered against the petitioner on account of the fact that the petitioner stopped his
business dealings with the complainant due to the defects in the furniture on account of
which the petitioner had received a number of complaints. Further contends that the
complainant is a very close friend of the S.H.O. of Police Station Nawan Kot and on
account of the harassment caused by the said S.H.O. the petitioner was constrained to file
a civil suit on 15-12-2005 against the complainant and the said police officer which is
still pending before the Civil Court at Lahore. The co-accused i.e. brother of the
petitioner, namely, Abrar ul Haq against whom similar allegations were levelled in the
F.I.R. has been granted bail by the learned Illaqa Magistrate on 7-1-2006 and the
petitioner too is, therefore, entitled to the concession of pre-arrest bail. Further states that
the delay of three months in lodging of the F.I.R. shows that the case against the
petitioner is false and that no direct evidence is available against the petitioner. The
offences under sections 406 and 506, P.P.C. are not hit by the prohibitory clause of
section 497, Cr.P.C.

3. On the other hand learned counsel for the State assisted by the learned counsel for the
complainant submitted that the petitioner was named in the F.I.R. and specific role had
been attributed to him, that the provisions of section 406 and 506 P.P.C. were fully
attracted to the case of the petitioner. He further contended that recovery has yet to be
effected from the petitioner and that civil litigation was no bar to the criminal
proceedings and that no mala fides of the complainant could be established by the
accused who was declared guilty by the Investigating officer and accordingly challaned.

4. I have heard the learned counsel for the parties and perused the record.

5. Perusal of the F.I.R. shows that the matter essentially is one of civil nature as the same
relates to business dealings between the petitioner and the complainant. The mala fides of
the complainant are obvious from the fact that the S.H.O. concerned is one of the
defendants in the civil suit filed by the petitioner which is prior in time to the F.I.R.
Further the fact remains that Abrar ul Haq co-accused has already been granted bail by
the learned trial Court on 7-1-2006 and according to the dictum laid down in the case of
Gulsher v. The State (2000 PCr.LJ 142) the petitioner is also entitled to the confirmation
of his bail before arrest. The possibility of the F.I.R. being lodged out of ulterior motives
by the complainant cannot be ruled out. Although civil litigation is no bar to the criminal
proceedings which can continue simultaneously, nevertheless one gets the impression that
the F.I.R. has been lodged in order to pressurize the petitioner through criminal process.
Reference is A made to Ubedullah v. The State (2003 PCr.LJ 1921).

6. The offences mentioned in the F.I.R. are admittedly not hit by the prohibitory clause of
section 497 Cr.P.C. as such the grant of bail is 'a rule and refusal is an exception.
Reference may be made to Tariq Bashir v. The State (PLD 1995 SC 34). The delay of
three months in lodging the F.I.R. also reflects negatively on the entire prosecution case.
It may also be noted here that contents of the F.I.R. reveal that the petitioner had only
extended verbal threats on the telephone. Mere verbal threats on the telephone would not
attract the provisions of section 506 Part-II P.P.C. The offence would, therefore, fall
within the ambit of section 506 Part-I P.P.C. which is a non-cognizable offence for which
punishment of two years is provided and is thus a bailable offence. There is not enough
evidence on the record to connect him with commission of offences alleged against him.

7. Resultantly the ad interim pre-arrest bail granted to the petitioner is confirmed.

H.B.T./I-15/L Bail confirmed.

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