MUHAMMAD NAWAZ---Petitioner Versus THE STATE and others---
Respondents
Citation: 2011 MLD 299
Result: Bail Refused
Court: Lahore High Court
Date of Decision: 26th August, 2010.
Judge(s): Syed Akhlaq Ahmed, J
Case Number: Criminal Miscellaneous No. 1328-B of 2010
JUDGMENT
SYED AKHLAQ AHMED, J.---Muhammad Nawaz petitioner/accused seeks his
post arrest bail in case F.I.R. No.338 dated 6-7-2010 under section 489-F P.P.C.
registered at Police Station Taxila, District Rawalpindi.
2. Prosecution case is that Muhammad Rafique complainant/ respondent No.2
purchased land measuring 100 kanal situated in chak Fateh Khan Tehsil Fateh
Jang, District Attock from Muhammad Nawaz son of Muhammad Hayat/petitioner
who after receiving Rs.9,00,000 (Rs. nine lacs) put his signatures/thumb
impressions and issued three cheques of Allied Bank Ltd. Taxila but did not hand
over the land. First Cheque No.5961710 dated 1-3-2010 was of Rs.3,00,000 second
Cheque No.5961712 dated 3-4-2010 was of Rs.3,00,000 and third cheque
No.5961711 dated 3-5-2010 was of Rs.3,00,000. When presented these cheques
were dishonoured by the Bank. It is stated that the petitioner has committed fraud
and threw the complainant in financial crisis, Legal action should be taken against
him.
3. Learned counsel for the petitioner contends that if the contents of the F.I.R. are
taken on its face value, it was a business transaction. The petitioner being an
illiterate person, he issued these cheques with his thumb impressions as he was
maintaining a photo account. These cheques could not be legally encashed under
the Bank Rules in the absence of the petitioner before the bank. According to the
police investigation Muhammad Rafique/complainant has so far received
Rs.750,000 from the petitioner through Muhammad Khan property dealer. He has
also kept with him Santro Car of the petitioner in lieu of remaining Rs.1,50,000. In
this way the whole amount of Rs.9,00,000 in dispute stood paid to the complainant.
The offence does not fall under the prohibitory clause of section 497, Cr.P.C. It is
therefore, prayed that the petitioner may be admitted to post arrest bail.
In support of his contention, learned counsel for the petitioner has relied upon 2005
PCr.LJ 144 Lahore 2005 SCMR 306, PLD 2005 Lahore 607 and 2009 SCMR
1488.
4. On the other hand, learned counsel for the complainant strongly opposed this
bail application.
He also produced Muhammad Rafique complainant/respondent No.2 before the
Court who told the Court that he is ready to state on the Oath of Holy Quran that
till to date he has not been returned even a single rupee out of the paid amount of
Rs.9,00,000 either by the petitioner or by Muhammad Khan or by Noor Elahi
property dealers. He further deposed that the petitioner as well as the aforesaid
persons, in league with the I.O. have again cheated him by giving false, affidavits
to the police showing that the whole defrauded amount of Rs.9,00,000 has been
paid and the I.O. without any verification from him accepted their plea.
5. Confronted with this situation Khaliq Dad A.S.-I./Investigating Officer present
in court stated that he called the complainant thrice to join the police investigation
but he did not come to him. Due to this he relying upon the affidavits furnished by
Muhammad Khan and Noor Elahi property dealers reached to the conclusion that
the amount of dishonoured cheques of Rs.9,00,000 has been repaid by the
petitioner to the complainant through the said persons.
6. I have heard the arguments of both the learned counsel for the parties and have
also gone through the record.
7. Issuance of three cheques worth Rs.3,00,000 each by the petitioner to
Muhammad Rafique complainant and its dishonour by the bank is an admitted fact
between the parties. Memorandum of return of these cheques issued by the bank
reveal that these cheques were dishonoured by the bank with the following
objections:
(i) Account closed
(ii) Photo account
8. The aforesaid objections of the bank prima facie establish that the petitioner had
no intention to pay Rs.9,00,000 to the complainant/ respondent No.2 from the day
one. He defrauded the complainant of his huge amount by issuing bogus cheques
of his account which was already closed and further which was a photo account.
The act of the petitioner amounts to financial murder of the complainant. So he
does not deserve any leniency. The finding of the I.O. that the whole defrauded
amount of Rs.9,00,000 has been paid by the petitioner to the complainant through
Muhammad Khan and Noor Elahi property dealers is also without any basis. The
affidavits given by Muhammad Khan and Noor Elahi property dealers to the I.O.
do not bear the signature of Muhammad Rafique complainant/respondent No.2 any
where. Perusal of the police file shows that the I.O. never issued any notice to
Muhammad Rafique complainant to appear before him or to join the investigation.
Muhammad Rafique complainant categorically denied before this court to have
received any amount from the petitioner or from Muhammad Khan and Noor
Elahi, property dealers. He has further informed the court that the stated Santro Car
of the petitioner is standing on the show room and is not in his possession. Khaliq
Dad A.S.-I./I.O. has thus conducted a dishonest investigation of this case without
joining Muhammad Rafique complainant in the investigation and gave an incorrect
finding to damage the prosecution case. RPO Rawalpindi is directed to proceed
against him on administrative side under intimation to D. R. (Judicial) of this
Bench.
9. No doubt the offence with which the petitioner is charged does not fall under the
prohibitory clause of section 497, Cr.P.C. However, grant of bail in such like cases
is not a rule of universal application. Each case has to be seen on its own facts and
circumstances:--
"Muhammad Akram v. The State", 2008 MLD 303 (Lahore); Shameel
Ahmad v. The State 2009 SCMR 174, Muhammad Afzal Javed v.
Muhammad Akram and another, 2010 PCr.R 622 (Lahore),"Muhammad
Siddique v. Imtiaz Begum and 2 others", 2002 SCMR 442 and "Muhammad
Naeem v. The State" 2010 PCr.LJ 504 (Lahore) relied upon.
There appears no mala fide or ulterior motive on the part of the complainant to
falsely involve the petitioner as accused in this case. The citations relied upon by
the learned counsel for the petitioner are not attracted to the facts and
circumstances of this case. I therefore, find that the petitioner is not entitled to the
concession of bail. His bail application, therefore, stands dismissed.
