JAFAR ALI ALVI vs STATE
The petitioner sought pre-arrest bail in respect of FIR No. 192 registered under Section 489-F of the Pakistan Penal Code 1860 at Police Station Kohsar, Islamabad, concerning dishonoured cheques allegedly issued in connection with business dealings between the parties. The core legal questions involved whether the registration of the FIR was sustainable given the territorial jurisdiction of the police station, prior civil proceedings in the United Arab Emirates, and whether the dispute essentially pertained to a settlement of accounts tainted with mala fide. The Lahore High Court held that the controversy primarily arose from business disputes and a settlement of accounts, that the SHO had earlier reported no cognizable offence within his jurisdiction, and that the existence of prior foreign civil court decisions coupled with the petitioner's clean record raised a strong possibility of mala fide to harm the petitioner's reputation and liberty. Consequently, the court confirmed the pre-arrest bail, laying down that pre-arrest bail is designed to protect citizens from unwarranted curtailment of liberty and societal disgrace in cases where commercial disputes carry elements of suspicion and mala fide.
- Whether pre-arrest bail can be confirmed when a criminal case arises out of a commercial dispute and settlement of accounts?
- Does an element of mala fide warrant the grant of pre-arrest bail to protect the liberty and reputation of an accused businessman?
- Whether the absence of a cognizable offence within the territorial jurisdiction of the police station affects the sustainability of criminal proceedings?
- Section 489-F, Pakistan Penal Code 1860
- Section 188, Code of Criminal Procedure 1898
ORDER
The petitioner filed this bail application for pre-arrest bail in FIR No, 192, dated 30.7.2005, at P.S. Kohsar, Islainabad under Section 489-F PPC.
2. Briefly, according to the FIR, the complainant reported that he was a Director of M/s Trade House Limited and looking after business in Pakistan. The petitioner approached him and in consideration of a deal petitioner issued Cheque No, 708861 to be drawn on Habib Al-Bank Al-Ain (U.A.E) but the same was dishonoured. According to the FIR, the petitioner also issued 28 cheques on different dates (detail of which is mentioned in the FIR), which were dishonoured.
3. The learned counsel for the petitioner submits that the instant FIR was registered on the orders of the learned ex-officio Justice of Peace/Sessions Judge, Islamabad vide order dated 14.7.2005. He submits that the cheques were issued in the name of Al-Ain Branch, Abu Dhabi, issued in the name of M/s Trading House Limited which company is also located in Abu Dhabi and about the same dispute a Civil Court in Abu Dhabi has already given decision on 21.1.2004. He further submits that both companies are located in Sharjah (UAE) and deals between the parties which took place in Sharjah is outside the territorial jurisdiction of P.S. Kohsar. He submits that it is incorrect that the cheque was presented at Islamabad or any bank account is being operated by the petitioner in Islamabad. He also submits that in report of SHO submitted before the learned Sessions Judge, Islamabad he opposed the registration of the instant FIR. He also refers to Section 188 Cr.P.C. and contends that mandatory provisions of Section 188 Cr.P.C. were not fulfilled before registration of case. He submits that basically matter relates settlement of account between the parties. The petitioner is a responsible businessm an and if not granted bail, he would be caused disgrace in the society.
4. The learned counsel for the complainant opposed the bail application on the ground that no mala fide has been pointed out by the learned counsel for the petitioner nor it exists. He further submits that recovery is yet to be effected in this case, therefore, pre-arrest bail, being an extraordinary concession should not be granted at this stage.
5. I have heard the learned counsel. The facts and arguments addressed from both sides make out abundantly clear that the petitioner and complainant were business partners but parted later on.
The subject matter of the F.I.R. relates to account. The SHO himself reported before the learned Sessions Judge that no cognizable offence was committed within his jurisdiction. The order of the Civil Court in U.A.E. is also on record which indicates dispute between both the parties. The record also shows that the petitioner is a businessman and has no criminal record. The purpose of law of pre-arrest bail is to protect liberty and reputation of citizens, particularly in a case where circumstances and facts are full of suspicion. Benefit of doubt is always given to the accused person. Particularly, when it involve curtailment of liberty. Controversy over settlement of accounts germinates hatred and mala fide. In the facts and circumstances of the present case, therefore, element of rnala fide cannot be ruled out.
6. In view of the above stated reasons, this application is allowed and interim bail granted to the petitioner vide order of this Court dated 8.9.2005 is confirmed subject to petitioner's furnishing of fresh surety bonds in the sum of Rs, 20,00,000/- (twenty lacs) with two sureties each in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.