TANVEER HUSSAIN Versus State
ORDER
SHAHID HAMEED DAR, J.--- The allegation against the petitioner, Tanveer Hussain, as per FIR No.643/16, dated 3.7.2016, under section 489-F, P.P.C., registered at police station Ghalib Market, Lahore is, that he issued a cheque of Rs.41,26,089/- to Lt. Col.(R) Bilal Asghar, Manager-Admn., Nishat Textile Mills Ltd., in the backdrop of his admission to have stolen certain articles from the said mills, which was presented for encashment, but it was bounced by the bank due to insufficient funds; he also executed an agreement on 19.6.2015 in favour of the complainant, whereby he recorded his guilt as to stealthily removing 104 imported spark-plugs and two actuating mechanism scanners from the factory.
2. After hearing the learned counsel for the parties and perusing the record, it is observed that the complainant previously got lodged FIR No.238/15, dated 21.6.2015, under section 380, P.P.C., police station Saddar Phoolnagar (Kasur) about theft of the same articles, as mentioned in FIR No.643/16 (supra) and FIR No.351/15, dated 16.9.2015, under section 408, P.P.C., police station Saddar Phoolnagar (Kasur) against the petitioner, wherein he has already been granted bail before arrest by this court vide orders dated 14.1.2016 and 23.12.2015, respectively. The instant one is third FIR on the trot against him. Without entering into the controversy of voluntariness of the agreement-deed, allegedly executed by the petitioner in favour of the complainant, it may be observed from its contents that the disputed cheque had been issued by the petitioner merely as a guarantee and it could be used against him for a future liability, that did not exist on the day of its issuance to the complainant. This particular nature of the instrument is somewhat alien to the requirement of section 489-F, P.P.C., which did not give coverage to a liability, likely to occur in future. In an identical situation, the Hon'ble Supreme Court of Pakistan in Mian Allah Ditta's case reported as 2013 SCMR 51 held that "prima facie, the circumstances indicate that the cheque in question was not issued towards repayment of some outstanding loan or fulfillment of an existing obligation but instead it had been issued to meet a possible future obligation if determined as a result of some other exercise. That being so, one of the foundational elements of section 489-F, P.P.C. is prima facie missing. The invocation of penal provision would therefore remain a moot point. The ground that prosecution is motivated by malice may not in these circumstances be ill-founded." The disputed cheque already stood bounced by the bank on 21.7.2015, but the complainant withheld this fact when he lodged FIR No.351/15 (supra) against the petitioner on 16.9.2015. It shows an element of malice on his part. It looks as if some bad blood existed between the parties and the complainant was all out to make the petitioner bite dust. While granting bail before arrest to the petitioner in case-FIR No.238/15 (supra), this court observed on 14.1.2016 that "the petitioner had been involved by the complainant in yet another FIR bearing No.351/15 on 16.09.2015 for offence under section 408, P.P.C. registered at police station Saddar Phool Nagar (Kasur), on the strength of the audit report formulated by 'Riaz & Co.', wherein his application for bail before arrest (Crl. Misc. No.15392-B-2015) has allegedly been allowed by this court on 23.12.2015. The language of the pro note shows that there existed relationship of loaner and a loanee between the parties, which is so mentioned therein. In such a situation, the probability cannot be ruled out that the petitioner may have repaid the debt that he owed to his masters through the said documents." In one of the documents, a pronote allegedly executed by the petitioner in favour of the complainant, it may be seen that the petitioner was a loanee of Rs.41,26,089/-, the same amount as mentioned in the FIR and in the disputed cheque, which meant that the effects of the said instrument were not clear, as regards the incumbent FIR itself. The probability cannot be ruled out that he may have been falsely involved in this case due to some malice or ulterior motives of the complainant.
3. Therefore, this application is accepted and ad-interim pre arrest bail granted to the petitioner on 1.2.2017 is confirmed subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- (one lac) with one surety in the like amount to the satisfaction of the learned trial court.
WA/T-7/L Bail confirmed.