Haroon Gaba vs NOT

SYED MUHAMMAD FAROOQ SHAH, J.:- The applicant Haroon Gaba presently confined in Central Prison, Karachi seeks bail in case crime No. 68/2013 for an offence punishable under section 420/489F PPC registered at P.S Azizabad. He was charge sheeted under section 406/420/489F/34 PPC alongwith his brother Muhammad Riwan Gaba.

2. Allegations as leveled against the applicant in the FIR lodged by the complainant Farhan are that in connection of mobile cellular phone business, the applicant and his brother received cellular phones goods worth Rs. 40 lacs in presence of witnesses and on demand of the complainant, the applicant issued two cheques amounting to Rs. 10 lacs each which were bounced on their presentation, consequently FIR was lodged by the complainant. The bail sought earlier was declined by the learned trial Court. Hence the instant bail application.

3. Mr. Asif Ali Pirzada while representing the applicant Muhammad Haroon Gaba submitted that co-accused M. Rizwan Gaba to whom identical role in commission of offence is assigned has already been admitted on bail vide order dated 9.5.2013, by the learned trial Court, however, bail to the applicant was declined which is against the principle of rule of consistency. It is next contended that section 406 and 420 PPC are not attracting in the circumstances of the present case and the alleged offence under section 489-F PPC does not fall within prohibitory clause of section 497 Cr.P.C; that the case of present applicant requires further enquiry under section 497 Cr.P.C.

4. Conversely, learned counsel for the complainant assisted by Mr. Zahoor Shah, A.P.G. vehemently opposes the grant of bail to the applicant on the ground that the applicant is signatory to the bounced cheques, issued to the complainant. Learned counsel placed reliance upon the case reported as NAVEED MAQSOOD V/S THE STATE (2012 YLR 674) and submitted that the conduct of the applicant has not been such to entitle him for a discretionary relief in a case which prima facie connects him for dishonestly issuance of two cheques of handsome amount of Rs. 20,00,000/- (Rupees Twenty Lacs). It is next contended that applicant is not entitled to the concession of bail.

5. Arguments heard. Record perused.

6. From perusal of record, it transpires that specific role of issuing bounced cheques by the applicant to the complainant has been assigned in the FIR. Therefore, keeping in view the facts and circumstances of the case, at this stage of tentative assessment of the case, I have no hesitation to observe that prima facie the applicant has issued two cheques of handsome amount of Rs.

20,00,000/-, therefore, the case does fall within the ambit of section 497 (2) Cr.P.C. I very humbly disagree to the contention of learned counsel for the applicant that rule of consistency is applicable in the instant case as the signatory of the cheques is applicant Haroon Gaba. The applicant issued the cheques, therefore, the element to constitute an offence under section 489-F PPC with regard to issuance of cheque by applicant with dishonest intention is available. In the circumstances, the foundational element of section 489-F PPC are prima facie available. Since malafide of applicant is evident from the record and it is settled proposition of law that grant of bail to an accused in a case not falling under prohibitory clause of section 497 Cr.P.C. is not a rule, particularly each case holds its own merits.

7. In the case of MUHAMMAD SIDDIQUE V/S. IMTIAZ BEGUM AND 2 OTHERS (2002 SCM R 442) the Apex court held that none can claim bail as of right in non-bailable offences even though the same does not fall under the prohibitory clause of section 497 Cr.P.C.

8. The submissions of learned counsel for the applicant that the offence being punishable with imprisonment of three years, does not fall within the prohibitory clause of section 497, Cr.P.C. should be deemed as a bailable offence as in such like offences, the grant of bail is a rule and rejection thereof is an exception, cannot be entertained. I advantageously rely upon "Shameel Ahmad v. The State" (2009 SCM R 174), and observe that an accused notwithstanding the punishment of imprisonment, not falling under the prohibitory clause, cannot be admitted to bail as a matter of right overlooking the attending facts and circumstances of the case. For seeking bail in a non-bailable offence, it is incumbent that the accused shall establish prima facie, the fact that his case is open to further inquiry. The prosecution case against the applicant brims with incriminating connecting evidence with regard to misrepresentation and he obviously has committed a non-bailable offence, falling outside the scope of further inquiry as contemplated under the above-said provision of law. In view of the above discussion, more particularly, dicta as laid down by the apex court, I reached at the irresistible conclusion that investment of Rs. forty lacs was initially involved in this case, on receiving the goods by the complainant with misrepresentation of facts, when the cheques of Rs. two millions became dishonored, the applicant did not took any remedial measures for amicable settlement or for its payment to the complainant, therefore, in such circumstances, the concession of pre-arrest bail cannot be extended to the applicant. Resultantly, the instant bail application is dismissed having no merits for consideration.

9. The order being tentative in nature shall not affect the merits of the case in any manner pending before the trial court.