PLJ 2024 Cr.C. (Note) 133
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD MAQBOOL--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 9634-B of 2023, decided on 21.12.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 489-F--Drawn a cheque--Finding of investigation--Dispute of purchase of vehicle--sale price--Two version of prosecution--Pre-arrest bail--Confirmation of--The allegation against the petitioner is that he had drawn a cheque of the total value of Rs. 49,00.000/-and issued the same to the complainant--The Investigating Officer of the case has determined that the narrative of the FIR was totally incorrect--No amount of Rs. 49,00,000/-was ever handed over by the complainant of the case to the petitioner on loan--Actual dispute between the parties related to the purchase of a vehicle--Vehicle as owned by the complainant of the case was not found to be registered in the name of the complainant--The impugned cheque as a collateral for ensuring the payment of the sale price of the said vehicle, was retained by the complainant--It did not have any writing on it regarding the amount--There are two versions of the prosecution case with regard to the circumstances--One as narrated in the FIR and the other as determined by the Investigating Officer dispute between the parties related to the purchase of a vehicle--The liability of the petitioner for the offence made punishable
u/S. 489-F, PPC becomes nebulous--Remedy for the complainant of the case for the recovery of amount lies somewhere else in the law--Liberty of the citizens has always been jealously guarded by the Court of law--This petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner is hereby confirmed.
[Para 2 & 4] A, B, C, D, E, F, G, H, I
2023 SCMR 748; PLD 2017 SC 730 ref.
Khawaja Qaiser Butt, Advocate for Petitioner.
Mr. Muhammad Sadiq Rehman, Additional Prosecutor General for State.
Mahar Ghulam Mustafa Tulla, Advocate for Respondent
No. 2/Complainant.
Date of hearing: 21.12.2023.
Order
Through this petition under Section 498, Cr.P.C., the petitioner, namely Muhammad Maqbool, seeks his pre-arrest bail in case F.I.R. No. 1196 of 2023 dated 14.10.2023 registered in respect of an offence under Section 489F, PPC at Police Station Model Town Burewala, District Vehari.
2. The allegation against the petitioner, culled from the evidentiary material produced before the Court is that he had drawn a cheque of the total value of Rs. 49,00,000/-and issued the same to the complainant of the case, which on presentation before the concerned Bank Authorities, was dishonoured.
3. I have heard the arguments of the learned counsel for the petitioner, the learned Additional Prosecutor General, the learned counsel appearing on behalf of Respondent No. 2/the complainant of the case, and perused the record with their able assistance.
4. This is a pre-arrest bail and only a tentative assessment of the evidentiary material produced before the Court can be made at this stage. The Investigating Officer of the case, present before the Court, submits that he has concluded the investigation of the case and has determined that the narrative of the F.I.R was totally incorrect. The Investigating Officer of the case further submits that he received evidence during the investigation of the case that no amount of Rs. 49,00,000/-was ever handed over by the complainant of the case to the petitioner on loan rather not even a single penny was ever handed over by the complainant of the case to the petitioner on loan ever. The Investigating Officer of the case further submits that according to the investigation and verification, the actual dispute between the parties related to the purchase of a vehicle however, when the vehicle as owned by the complainant of the case was not found to be registered in the name of the complainant of the case, then, the agreement made between the parties with regard to the purchase of the said vehicle ended however, the impugned cheque which was handed over by the petitioner to the complainant of the case, as a collateral for ensuring the payment of the sale price of the said vehicle, was retained by the complainant of the case and thereafter, was used for getting the instant F.I.R registered. The Investigating Officer of the case lastly submits that he has also determined that the entries in the cheque with regard to the amount for which, it had been drawn, had been made by the complainant of the case himself and at the time of handing over of the said cheque, it did not have any writing on it regarding the amount for which, it had been drawn. The said conclusions of the Investigating Officer of the case have been incorporated in Case Diary No. 4 dated 26.11.2023. In this manner, there are two versions of the prosecution case with regard to the circumstances whereby the complainant of the case came into possession of the cheque in dispute, one as narrated in the F.I.R and the other as determined by the Investigating Officer of the case. According to the conclusions of the Investigating Officer of the case, he has determined that no amount of Rs. 49,00,000/-had ever been handed over by the complainant of the case to the petitioner as loan and when it has been determined by the Investigating Officer of the case that actually, the dispute between the parties related to the purchase of a vehicle owned by the complainant of the case which was found not to had been registered in the name of the complainant of the case and when it has been determined that the cheque in dispute was handed over to the complainant of the case for keeping it as a collateral to ensure the payment of the sale price of the vehicle and the cheque, at the time of handing over the same, did not have any writing on it with regard to the amount for which the same was drawn, the liability of the petitioner for the offence made punishable under Section 489-F, PPC becomes nebulous. It shall be the learned trial Court, which shall be determining as to which of the two versions of the incident is correct, however, at present, for the fact that there are two versions, the case of the petitioner requires further probe. Reliance in this regard is placed upon the case of “Bashir Ahmed versus The State and another” (2023 SCMR 748). In the attending circumstances, the remedy for the complainant of the case for the recovery of amount lies somewhere else in the law than by way of registering a criminal case in respect of an offence under Section 489-F, PPC. The prosecution case mainly is based on documentary evidence which has already been taken into possession by the Investigating Officer. According to the Investigating Officer, nothing is to be recovered from the possession of the petitioner. The Investigating Officer of the case has verified the versions of the petitioner as well as the complainant during the investigation of the case. Liberty of the citizens has always been jealously guarded by the Courts of law. Sending the petitioner behind the bars in the circumstances would not serve any useful purpose and would cause irreparable loss to his reputation. Reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enunciated:
“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/ materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”
5. In view of the above discussion, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner by this Court vide order dated 14.12.2023 (is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 200,000/-(Rupees Two Hundred Thousand) with two sureties each, in the like amount to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. Furthermore, a direction is issued to the Investigating Officer of the case to complete the investigation of the case within the next two days positively and the S.H.O. concerned is directed to submit the report under Section 173, Cr.P.C. within the next seven days positively. Furthermore, the learned trial Court is directed to conclude the trial of the case expeditiously, preferably, within a period of three months after taking cognizance of the case. If the delay in the conclusion of the trial is occasioned by any act of the petitioner or any person acting on his behalf, or if the petitioner absents himself from the learned trial Court or if the petitioner misuses the concession of the bail in any manner, the learned trial Court shall be at liberty to cancel the bail of the petitioner, in accordance with the law.
(M.A.B.) Bail confirmed
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