ABDUL RAUF MINHAS vs AAMIR NOOR KHAN and another
This criminal petition arises from a Lahore High Court judgment seeking the cancellation of pre-arrest bail granted to the respondent by the Additional Sessions Judge in a case registered under section 489-F of the Pakistan Penal Code 1860. The core legal question was whether sufficient grounds existed to cancel the pre-arrest bail granted to the accused, considering allegations of mala fides, a misplaced cheque with a prior stop-payment instruction, and an employment relationship between the parties. The court held that the petitioner failed to make out a case for bail cancellation, finding that the respondent's pre-arrest bail was rightly granted due to apparent mala fides, ulterior motives, and the questionable circumstances surrounding the issuance of the cheque. The key principle laid down is that pre-arrest bail is rightly sustained and refusal to cancel it is warranted where the criminal case appears to be tainted with mala fides, ulterior motives, or an absence of a bona fide transaction, serving to protect an innocent person from harassment and humiliation.
- Whether pre-arrest bail granted by an Additional Sessions Judge can be cancelled when the complainant fails to establish bona fides?
- Is a criminal case under section 489 of the Pakistan Penal Code sustainable when evidence indicates the disputed cheque was misplaced and stopped years prior?
- Does an employment relationship between the complainant and the accused affect the credibility of a financial transaction in bail matters?
- Section 489-F, Pakistan Penal Code 1860
ORDER
' ZAFAR IQBAL CHAUDHRY, J.-- Petitioner seeks cancellation of pre-arrest bail granted to the respondent Aamir Noor Khan by the learned Additional Sessions Judge vide order dated 4-3-2008 in case F.I.R. No,354/2007 dated 10-4-2007, under section 489-F, P.P.C., Police. Station Qila Gujjar Singh, Lahore.
2. Learned counsel for the petitioner in support of this bail cancellation petition submits that the learned Additional Sessions Judge, while granting pre arrest bail to the respondent, has ignored that case of the respondent did not fall within the requirements laid down by the principles settled by the Superior Courts; that the respondent himself has admitted issuance of cheque in favour of the petitioner; that there was no reason for the learned ASJ to allow the respondent pre-arrest bail as the cheque was dishonoured by the Bank; that the respondent had a joint business with the petitioner, therefore, the reason given by the learned ASJ that the respondent was not traceable as his address was not available, is against the weight of record; that the petitioner/complainant had no mala fide or ill-will to falsely implicate the respondent in this case; that the respondent was not entitled to the extraordinary concession of pre arrest bail; that respondent's pre-arrest bail is liable to be cancelled as he is connected with the alleged commission of the offence and that in support of the afore-referred contentions, he would place reliance on 2006 SCM R 66, 2002 SCMR 4421, 1977 PCr.LJ 487 and PLD 1974 Lahore 323.
3. On the other hand, learned counsel for the respondent, while supporting the impugned bail granting order and opposing this bail cancellation petition, contends that the respondent has been falsely involved in this case on account of mala fide of the complainant as well as of the local police; that the petitioner was an employee in the respondent's company so he had access to the documents of the respondent; that the disputed signed cheque bearing No,1293223 was misplaced in 2004 qua which the Bank authorities were duly informed in support of which an attested Bank Statement of KASB Bank limited, Abbott Road, Branch, Lahore has been produced before this Court which indicates that after misplacement of the said cheque, its payment was stopped by the respondent on 26th August, 2004; that the respondent is residing since long in a governmental residential accommodation allotted to his father by the Railway Department and the petitioner intentionally avoided to give correct address in the F.I.R. And that this bail cancellation petition is liable to be dismissed.
4. I have heard learned counsel for the parties. I have gone through the impugned order dated 4- 3-2008 passed by the learned Additional Sessions Judge, whereby, respondent was allowed pre arrest bail in a case registered under section 489-F. From the perusal of the impugned order and the Bank Statement, attested copy of which has been produced before this Court by the learned counsel for the respondents and which has been placed on record as Mark-A, shows that the disputed signed cheque bearing No,1293223 was misplaced during the year 2004 qua which the Bank authorities were duly informed by the respondent and in support of the said contention an attested Bank Statement of KASB Bank Limited, Abbott Road, Branch, Lahore has been produced by the respondent before this Court which indicates that on account of misplacement of the said cheque, its payment was stopped by the respondent on 26th August, 2004. Learned counsel for the petitioner has not been able to controvert contention of the learned counsel for the respondent that the petitioner was employee of the respondent. Even this contention was raised as ground (a) in the grounds of petition filed before the learned Additional Sessions Judge and there was no rebuttal to the said contention either before the learned Additional Sessions Judge which shows that the petitioner had access to the official, documents of the respondent. It is repellent A to common sense that an employer would get loan from the employee. Apart from above, learned counsel for the petitioner has not even satisfied me about non-mentioning of correct address of the respondent in the F.I.R. When the respondent was residing at a permanent address in the official accommodation allotted to his father being employee in the Railway Department. In the above scenario, this Court is not satisfied with the bona fides of the petitioner qua the allegations levelled against the respondent in the F.I.R. The question of grant of pre arrest bail, in a case based on enmity, mala fides, registered for ulterior motive, or where no offence was shown to have been committed on the basis of the record, came up for consideration before the august Supreme Court of Pakistan in the case of Alam Chand alias Aloomal and 2 others v. Jamil Ahmad and another (2008 SCM R 980), wherein at page 982, it was observed as under:-
6. It would be pertinent to mention here that law with regard to exercise of jurisdiction for grant or otherwise of the pre-arrest bail is well settled. Pre-arrest bail may be granted when a case is based on enmity, mala fides, registered for ulterior motive or where no offence is shown to have been committed on the basis of the record because the objectto protect the innocent persons from humiliation, harassm ent and disrespect. This view receives support from the cases: (i) Ch. Waris Ali v. The State (2007 SCM R 1607), (ii) Lal Muhammad Kalhoro and others v. The State (2007 SCM R 843), (iii) Masood Ahmad alias Muhammad Masood and another v. The State (2006 SCM R 933),
(iv) Syed Muhammad Firdaus and others v. The State (2005 SCM R 784), (v) Rais Wazir Ahmad v.
The State (2004 SCM R 1167), (vi) Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCM R 68),
(vii) Malik Zafar Abbas v. Agha Raza Abbas Qazilbash and another (PLD 2002 SC 529) and (viii)
Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82).
5. In the afore-referred circumstances coupled with having sought guidance from the above quoted case law, this Court is of the considered view that learned counsel for the petitioner has not been able to make out a case of bail cancellation of the respondent as the learned Additional Sessions Judge B has rightly granted bail before arrest to the respondent as he was able to make out a case for the grant of such a relief, hence, this petition fails and is accordingly dismissed.