Syed Zahoor-Ul-Hassan Shah vs The State

ORDER

AFTAB AHMED GORAR, J.---Applicant/accused Syed ZahoorUl-Hassan Shah son of Maghfoor-Ur-Rehman Shah was earlier admitted to ad interim pre arrest bail by this court vide order dated 29-11-2019; hence the same ripe up for confirmation or otherwise. The applicant/accused has been booked in a case registered under sections 489-F and 506, Pakistan Penal Code, bearing crime No. 36 of 2019, Police Station Sachal, Malir , Karachi.

2. The sum and substance of the prosecution story as is envisaged in the FIR is that complainant is doing business with accused; complainant came to know that accused had cheated so many other parties; complainant stopped supply of Rice to the accused; an agreement was executed for repayment of money . Out of seven cheques, two cheques have been encashed and cash of Rs.6,30,000/= have been returned; remaining Cheques were dishonored.

3. Learned counsel for the applicant contended that applicant had filed suit for cancellation of cheques whereby restraining order was passed by the learned court of 6th Senior Civil Judge; Karachi West on 20-04-2018: till to- date complainant has not filed suit for Recovery of his outstanding amount.

4. Learned counsel for the complainant contended that the restraining order dated 20-04-2018 has been recalled by the learned Senior Civil Judge, Karachi [West]; and suit has been dismissed under Order XVII, Rule 2 read with Order IX, rule 3, C.P.C. on 30-09-2018 and same order has not been challenged by the applicant before the Appellate Forum; the applicant is habitual offender and is in the habit of issuing bogus cheques to the citizen including complainant; learned counsel further argued that series of FIRs have been registered under section 489- F, P.P.C. against the applicant; he has placed on record Photostat copy of FIR bearing Crime No. 357 of 2018 PS Model Town, Lahore. Learned counsel has also placed on record CRO of the appli cant, which reflects that FIR No. 06 of 2011 PS SITE Karachi and FIR No. 39 of 20t4 Police Station Ibrahim Hydri, both cases were registered under sections 420, 489-F and 34, P .P.C.

Learned counsel has relied upon the case law reported in 2019 YLR 2467 .

5. Learned Additional Prosecutor General Sindh opt the arguments advanced by the learned counsel for the complainant and had further contended that applicant accused is not entitled for concession of confirmation of bail; per learned Additional P.G there is sufficient material available with the prosecution which would connect the applicant with the commission of present crime; per learned Additional P.G, there are series of other cases registered against the present applicant of same nature; per learned A.P.G. applic ant is habitual offender offering dishonored cheques to the public at large just to cheat and defraud public at large; learned Additional PG prayed that the ad interim pre arrest bail may be recalled and bail plea of the applicant may be declined.

6. Heard and perused.

7. After the arguments advanced by the learned counsel for the applicant while following arguments of learned counsel for the complainant were in league, during course of the arguments, all of sudden learned counsel for the complainant produced placed on record CRO of the applicant, applicant became shocked to know his criminal record available produced before the court stepped back and made his escape good from the courtroom, in a slipshod manner: and had succeeded in fleeing away from the court premises such act of the applicant had caused great inconvenience to the court proceedi ngs. This kind of misuse of concession of ad interim pre arrest bail would entail great penalty under the circumstanc es. Thus applicant has made crystal clear that he is habitual offender and is in the habit of causing .cheating and dishonesty with innocent public at large. Owing to the prevailing circumstances and by state of the affairs, it's being repugnant; and dishonoring of cheque is a financial murder of not only the ef fected person but also his whole family .

I am fortified with the case law reported in 2019 YLR 2467 , it has been held as follows:- "----S. 498---Penal Code (XLV of 1860), Ss. 420 & 489-F--- Cheatin and dishonestly inducing delivery of property , dishonestly issuing a cheque---Pre-arrest bail, refusal of---Huge amount was involved---Effect---Petitioner had not denied the issuance of the cheque which after presentation was bounced by the Bank due to insufficient balance--- Petitioner instead of compensating the complainant, extended threats to the complainant which act could not be seen in good taste---Ad interim pre-arrest bail already granted to the petitioner was recalled, in circumstances."

I am also fortified with the case law reported in 2009 SCMR 174 in the case of Shameel Ahmed v. The State , in which the Hon'ble apex Court has observed as follows:- "It is observed that it is not a rule of universal application. Each case has to be seen through its own facts and circumstances. The grant of bail, no doubt, is discretion granted to a Court, yet the exercise of it cannot be arbitrary , fanciful or perverse. If an order granting the bail has been obtained after suppressing necessary details of vital importance, the bail can be cancelled by the Court which had granted it. Petitioner who was involved in three previous cases of similar kind was prima fade found to be a habitual offender of issuing cheques and defrauding the people."

8. Accused had also failed to show any mala fide on the part of the complainant as well as on the investigation agency. Delay in lodging the FIR could be for the reasons to give a last opportunity to accused for payment of the due amount. Moreso, complainant had no mala fide intention to falsely implicate accused in the case and prima facie accused had failed to show that the cheques were not dishonestly issued for payment of any loan or obligation. Accused having not made out a case for confirmation of the pre-arrest bail, pre-arrest bail granted to the accused' vide earlier order, was recalled and consequently bail application stood dismissed.