489-F PPC, 497 CRPC POST ARREST BAIL, NON-PROHIBITORY CLAUSE, BAIL ALLOWED TO ACCUSED
2011 SCMR 1708
2011 SCMR 870
2009 SCMR 1488
2013 S C M R 51
2011 SCMR 1708
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ
RIAZ JAFAR NATIQ---Petitioner
Versus
MUHAMMAD NADEEM DAR and others---Respondents
Criminal Petition No. 347-L of 2011, decided on 8th June, 2011.
(On appeal from the judgment dated 14-4-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 1642-B of 2011).
Criminal Procedure Code (V of 1898)---
----S. 497(1)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Issue of cheque dishonestly---Bail„ grant of--Non-prohibitory clause of S. 497, Cr. P. C. ---Allegation against accused was that he issued a cheque for a sum of Rs. 20 million, which was dishonoured on presenting in bank---Effect---Where a case fell within non prohibitory clause of S. 497, Cr.P.C. the concession of granting bail must be favourably considered and should only be denied in exceptional cases---Bail was allowed.
Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 fol.
Shawar Khilji, Advocate Supreme Court for Petitioner.
Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.
Date of hearing: 8th June, 2011.
JUDGMENT
MIAN SAQIB NISAR, J.---The petitioner has been arrested in case F.I.R. No. 1107 registered under section 489-F, P.P.C. on 23-8-2010 at Police Station Qila Gujar Singh, Lahore for dishonour of cheque amounting to Rs.2,00,00,000. He was arrested in this case on 8-10-2010; the challan according to Additional Prosecutor-General, has already been submitted on 10-10-2010. The maximum sentence under section 489-F, P.P.C. is three years. The case does not fall within the prohibitory clause. The petitioner is behind the bars since last eight months and he is not required by the police for the purposes of investigation at this stage. Beside that the petitioner is a4 diabetic and is a patient of ulcer and a report in this regard is available on the record.
2. Thus keeping in view the law laid down in the case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) ordaining that where a case falls within non-prohibitory clause the concession of granting bail must be favourably considered and should only be declined in exceptional cases. We do not find this to be a case where it should be refused as an exception. Thus, this petition is converted into an appeal and the same is allowed and, resultantly, the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
M.H./R-6/SC Bail allowed.
2011 SCMR 870
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ
SIKANDAR ZAMAN---Petitioner
Versus
THE STATE and others---Respondents
Criminal Petition No. 1113-L of 2009, decided on 18th September, 2009
(On appeal against the order dated 27-7-2009 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 8382-B of 2009).
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Direction given by High Court for conclusion of trial within three months had not been complied with---Dispute was between husband and wife---Offence alleged did not fall in the prohibitory clause of S. 497, Cr.P.C.---Supreme Court converted the petition into appeal and admitted the accused to bail in circumstances.
Saiful Haq Ziay, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner.
Alamgir, Additional P.-G. for the State.
ORDER
TASSADUQ HUSSAIN JILLANI, J.---Seeks bail in a case registered vide F.I.R. No. 140 of 2008 dated 23-3-2008 under section 489-F, P.P.C. at Police Station Garden Town, Lahore, wherein it was alleged that the cheque issued by the petitioner amounting to Rs. 100,000 in favour of complainant/petitioner's wife was dishonoured.
2. Learned counsel for the petitioner seeks bail on the ground that the allegation is false; that petitioner did not sign the cheque; that on account of strained relations, the complainant forged petitioner's signature and brought the matrimonial dispute in the domain of criminal law. Adds that the offence alleged does not fall within the prohibitory clause of section 497, Cr.P.C.
3. Learned Additional Prosecutor-General opposed the petition by submitting that the trial is in progress and that some witnesses have already been recorded but on courts query he is not in a position to say as to when the trial is likely to conclude. Even otherwise, the direction given by the High Court for conclusion of trial within three months has not been complied with. The dispute is between husband and wife and the offence alleged does not fall in the prohibitory clause of section 497, Cr.P.C.
4. In the afore-referred circumstances, this petition is converted into appeal and allowed and subject to petitioner's furnishing security bond in the sum of Rs. 100,000 with one surety in the like amount to the satisfaction of trial Court, he shall be released on bail.
N.H.Q./S-57/SC Bail allowed.
2009 SCMR 1488
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Sardar Muhammad Raza Khan, Ch. Ijaz Ahmad and Jawwad S. Khawaja, JJ
ZAFAR IQBAL----Petitioner
Versus
MUHAMMAD ANWAR and others----Respondents
Criminal Petition No.300 of 2009, decided on 1st July, 2009.
(On appeal from the judgment/order, dated 15-4-2009 passed by Islamabad High Court, Islamabad in Criminal Miscellaneous No.81/BC of 2009).
(a) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail---Principles---Courts in cases, where offence falls within non-prohibitory clause of S.497, Cr.P.C., consider favourably by granting bail as a rule but decline to do so in exceptional cases---As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case.
Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Subhan Khan v. The State 2002 SCMR 1797 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Partial return of money---Civil suit, pendency of---Effect---Complainant had no business deal with accused and amount was given to accused for profit bearing investment---Accused failed to make payment of profit to complainant for one or the other reason, on which the complainant got registered case against him---Bail granted by Trial Court to accused was cancelled by High Court---Validity---Accused charged for criminal offence ordinarily could not be kept into custody for the purpose of punishment---Accused had remained, in custody for a period of six months and if prosecution would fail to establish guilt against him, longer detention of accused would cause him loss and his liberty would be curtailed for .a considerable period without any legal justification---In case of a matter falling under non-prohibitory clause of S.497, Cr.P.C., accused could not claim bail as a matter of right but such facility could be extended to him as a matter of concession---Accused had already returned huge portion of amount received by him from complainant---Civil litigation had already commenced at the behest of complainant who filed suit for recovery of amount against accused---Bail was granted.
Haroon-ur-Rashid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.
Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Respondent No. 1.
Ch. Tariq Mehmood, Additional Prosecutor and Abdul Sattar, S.-I./Investigating Officer for the State.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition is directed against, the judgment, dated 15-4-2009 passed by Islamabad High Court, Islamabad whereby Criminal Miscellaneous No.81/BC of 2009 filed by the respondent No.1 was allowed and the post-arrest bail allowed to the petitioner vide order, dated 30-9-2008 by the High Court was recalled.
2. Precisely stating facts of the case are that an F.I.R. No.124 dated 14-4-2006 was registered with Police Station Margallah, Islamabad under section 489-F, P.P.C., against the petitioner Zafar Iqbal on the complaint of the respondent No.1 Muhammad Anwar, to the effect that the petitioner issued a cheque of Rs.4,00,000 (four lacs), which was dishonoured from the bank on presentation. On registration of the case, the petitioner applied for post-arrest bail before the Civil Judge-cum-Judicial Magistrate, Islamabad which was dismissed vide order, dated 17-6-2006. Feeling aggrieved; the petitioner approached the learned Sessions Judge, Islamabad, with the same request, which met the same fate. The petitioner challenged the said order before the Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Criminal Miscellaneous No.1072/B of 2006, which was accepted and petitioner was conditionally allowed interim bail on 18-10-2006, which later on was confirmed vide order, dated 29-11-2006 in terms of undertaking by the petitioner that the amount due to the complainant/respondent No.1 i.e. Rs.18,00,000 (eighteen lacs) shall be paid in equal instalments of Rs.9,00,000 each on 4-1-2007 and 4-2-2007. Afterwards, the petitioner failed to pay the outstanding amount, as result whereof the respondent No.1 moved an application for cancellation of bail before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was disposed of in view of the agreement, dated 11-2-2008 whereby the petitioner undertook to pay an amount of Rs.7,00,000 (seven lacs) through pay order, dated 13-2-2008 and the remaining amount of Rs.11,00,000 (eleven lacs) within next three months. The bail granted to the petitioner ultimately was cancelled vide order, dated 30-7-2008. Thereafter, the petitioner again applied for grant of bail after arrest before the Islamabad High Court by way of filing Criminal Miscellaneous No.312/B of 2008, which was allowed vide order dated 30-9-2008 and the petitioner was admitted to bail, for the reason that he has paid Rs.7,00,000 (seven lacs) in cash to the respondent No.1 (acknowledged by the respondent No.1) and gave the undertaking that the balance of Rs.11,00,000 (eleven lacs) shall be paid within three months.
3. It may be noted that the petitioner again failed to comply with his undertaking, resultantly the respondent No.1 moved Criminal Miscellaneous No.81/BC of 2009 for cancellation of bail, already granted to the petitioner. The learned High Court, on the request of the petitioner adjourned the matter twice to settle the matter amicably, with the direction that no further adjournment would be allowed. However, on third date of hearing, no one appeared on behalf of petitioner. Resultantly, the petition was allowed by means of impugned order dated 15-4-2009 on merits and on account of petitioner's failure to attend the Court, whereby the post-arrest bail allowed to him vide order dated 30-9-2008 was recalled. Hence this petition.
4. Learned counsel contended that the petitioner had already spent about 6 months in jail, against the maximum sentence of 3 years under section 489-F, P.P.C., therefore, being allegedly involved, his case falls within the prohibitory clause of section 497, Cr.P.C. as such he is entitled for release on bail because in such-like cases grant of bail is rule whereas denial is exception. He further stated that .the Courts have to decide the case following the principle of law, without considering the amount involved in the case, like falling within the mischief of section 489-F, P.P.C.
5. On the other hand, learned counsel for the complainant argued that the petitioner despite furnishing undertaking, failed to comply with the same, therefore, the High Court had rightly recalled the concession of bail granted to him. He further explained that the petitioner had entrusted huge amount to him for the purpose of running business but he had deceived him by misappropriating the amount in clandestine manner as evident from the facts of the case. The complainant explained to him that he, had given the amount to the petitioner for the purpose of investment and after sometime he had also given him profit but later on stopped the payment, therefore, he filed a complaint against him because a cheque issued by him was dishonoured. Further, the undertaking to return the money was also violated therefore, he had filed a suit for recovery of his money and had also lodged a criminal case against him as well.
6. Learned Additional Prosecutor-General supported the impugned order of the High Court.
7. We have heard the learned counsel for the parties and have also examined the record, so made available, carefully. A perusal whereof suggests to draw inference that there was no business deal between the parties and the amount of Rs.4,00,000 was initially given by the complainant to the petitioner for making investment and given him profit of the same but at the time when he failed to make the payment of profit for one or the other reasons, he got registered a case against the petitioner. As far as section 489-F, P.P.C. is concerned it prescribes sentence of 3 years. The Courts, in such-like cases where offence falls within the non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in the exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. Reference may be made to the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 wherein it has been mentioned that "section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years and (ii) offences punishable with imprisonment for less than ten years, the principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal and exception. So the bail will be declined only in extraordinary and exceptional cases, for example:
(a) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
This principle has also been reiterated in the case of Subhan Khan v. The State 2002 SCMR 1797.
8. It is also one of the important aspects of the case that an accused, charged for a criminal offence, ordinarily cannot be kept into custody for the purpose of punishment. As in the instant case the petitioner had already remained in jail for a period of six months and if the prosecution failed to establish guilt against him, his longer detention would cause him loss and his liberty would be curtailed for a considerable period without any legal justification.
9. We may further observe that under the non-prohibitory clause as well, an accused cannot claim bail as a matter of right but such facility can be extended to him as a matter of concession, simultaneously, keeping in mind the fact that the petitioner had already returned a huge portion of amount received by him from the complainant. Since the civil litigation had already commenced at the behest of the respondent who had filed a suit for recovery of the amount against the petitioner, we are inclined to grant him bail under the facts and circumstances of the case narrated hereinabove. These are the reasons of our short order, dated 26-6-2009 which is reproduced as under:---
"For the reasons to be recorded later, petitioner is ordered to be released on bail subject to furnishing surety bond in the sum of Rs.1,00,000 and P.R. in the like amount to the satisfaction of the learned trial Court. Learned trial Court is directed to complete the trial of the case within four weeks. Abdul Sattar S.-I./Investigating Officer, present in Court, is directed to produced all the witnesses before the trial Court at his own responsibility. No adjournment shall be granted unless otherwise unavoidable and the compliance report shall be sent to the Registrar for our perusal in Chambers. Petition is converted into appeal and allowed in the above terms."
M.H./Z-10/SC Bail granted.
2013 S C M R 51
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ
Mian ALLAH DITTA---Petitioner
Versus
THE STATE and others---Respondents
Criminal Petition No.707-L of 2012, decided on 31st October, 2012.
(Against the order of the Lahore High Court Lahore dated 19-9-2012 passed in Criminal Miscellaneous No.12966-B of 2012).
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Cheque issued as security and not towards repayment of outstanding loan or fulfilment of an obligation---Effect---Complainant alleged that accused owed him a sum of money and paid the cheque in question, which was dishonoured on presentation---Accused contended that cheque in question had only been issued as security when both parties agreed to settle their dispute through arbitration---Validity---Issuance of cheque in question appeared to be connected with the arbitration accord---Investigation officer stated that cheque was issued by way of security rather than for discharge of liability---Prima facie circumstances indicated that cheque in question was not issued towards repayment of some outstanding loan or fulfilment of an existing obligation instead it had been issued to meet a possible future obligation, therefore, foundational elements of S.489-F, P.P.C. were prima facie missing---Pre-arrest bail of accused was confirmed in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 489-F--- Dishonestly issuing a cheque--- Ingredients---Foundational elements to constitute an offence under S.489-F, P.P.C. were that cheque should be issued with dishonest intent; that cheque should be issued towards repayment of a loan or fulfilment of an obligation, and that cheque in question should be dishonoured.
Sikandar Zulqarnain, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.
Malik Mushtaq Ahmed, Advocate Supreme Court along with the Complainant for Respondent No.2.
Mazhar Sher Awan, Additional P.-G. Punjab and Muhammad Khan, SI/IO Police Station Kotwali, District Sialkot for the State.
Date of hearing: 31st October, 2012.
JUDGMENT
TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks bail in the case registered vide F.I.R. No.261 of 2012 dated 7-8-2012 under section 489-F, P.P.C. at Police Station Kotwali District Sialkot on the statement of Mian Muhammad Shoban with the allegation that he had some business transactions with the petitioner; that in that regard the petitioner owned him a sum of Rs.2500,000 for which he issued cheque bearing No.41741493 amounting to Rs.2500,000 which was dishonored when presented before the Askari Bank.
2. Learned counsel for the petitioner seeks bail on the ground that the case is false; that the petitioner and complainant entered into an agreement for construction of complainant's house; that a dispute arose with regard to the rendition of amounts for which one Arshad Mehmood Bagoo Advocate was appointed as Arbitrator and it was agreed that whatever the said Arbitrator decided, both sides would abide by and comply with the said decision. The cheque in question, he further contended, was issued as security and this was not the amount which was to be paid to the complainant nor he was ever held entitled to receive the said amount by the Arbitrator (vide the Arbitration Award dated 24-11-2011).
3. Learned counsel for the complainant, on the other hand, opposes the petition and submits on instructions that the cheque in question was issued on account of an agreement dated 17-8-2011 and that the arbitration award to which reference has been made by petitioner's learned counsel is not relevant; that petitioner owes the cheque amount mentioned in the cheque and that is why he issued the cheque which has been dishonored and he is not entitled for the grant of bail.
4. The investigating officer present in Court, on Court's query, submits that during investigation, it has come to light that Mr. Arshad Mehmood Bagoo was appointed as Arbitrator and in terms of his award, petitioner owed the complainant Rs. 650,000 and the cheque issued by the petitioner was by way of security when parties had decided to have the matter settled through arbitration and it was not the actual amount which petitioner was liable to pay to the complainant.
5. Learned Additional Prosecutor-General opposes the petition by submitting that the very fact that petitioner issued a cheque which was dishonored makes him criminally liable and he is not entitled to pre-arrest bail as there are no mala fides apparent on record.
6. Having heard learned counsel for the parties and learned Law Officer at some length and having gone through the record, we find that the agreement dated 17-8-2011 to which reference has been made by complainant's learned counsel is of a prior date which was overtaken by a subsequent arbitration accord dated 24-11-2011 and the cheque dated 20-7-2012 ex facie appears to be connected with the said subsequent arbitration accord. This is also borne out from the finding in investigation carried out by the police. According to the investigating officer, the cheque issued amounting to Rs.2500,000 was by way of security, rather than for the discharge of liability to the tune of the amount mentioned in the said cheque. He further added that in terms of the award given by the Arbitrator, petitioner owes only Rs.6,50,000. Be that as it may, we would not like to go into depth of the issue lest it may prejudice anyone during investigation or trial. But the case in hand begs a question as to what constitutes an offence under section 489-F, P.P.C. Every transaction where a cheque is dishonored may not constitute an offence. The foundational elements to constitute an offence under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfillment of an obligation and lastly that the cheque in question is dishonored.
7. In the instant case, 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. Consequently, this petition is converted into appeal and allowed and subject to petitioner's furnishing bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court, he shall remain on pre-arrest bail.
MWA/A-30/SC Petition allowed.
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ
MUHAMMAD SARFRAZ---Petitioner
Versus
THE STATE and others---Respondents
Criminal Petition No.70-L of 2014, decided on 18th March, 2014.
(Against the order dated 23-12-2013 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.15745-B of 2013)
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Over-writing on cheque---Complainant alleged that he paid the accused different amounts from time to time for purposes of business, and the accused issued him a "self cheque" for returning the said amounts, however the cheque was dishonoured on presentation---Cheque in question had some overwriting upon the date of the cheque and the amount in figure---Said cheque was not issued in favour of the complainant, and there was no amount mentioned on it in words---No evidence was available with the complainant to show as to how, when and by what process various amounts were paid to the accused for business purposes---Maximum sentence for offence under S. 489-F, P.P.C. was three years imprisonment, thus it did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was behind bars for the last about six months--- Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.
Muhammad Masood Chishti, Advocate Supreme Court for Petitioner.
Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Shams-ul-Hassan, S.-I. for the State.
M.A. Qureshi, Advocate-on-Record for Respondent No.2 (in person).
Date of hearing: 18th March, 2014.
ORDER
MIAN SAQIB NISAR, J.---The petitioner is an accused of a criminal case registered under section 489-F, P.P.C. The allegation levelled against the petitioner is, that he issued a cheque amounting to Rs.16,00,000 in favour of the complainant, which was dishonoured by the bank when presented before it for encashment. The petitioner applied for his post-arrest bail, which has been declined by the learned High Court vide impugned order dated 23-12-2013.
2. Learned counsel for the petitioner has argued, that there is overwriting on the alleged cheque with regard to the date as also the amount in the figures. Besides, it is a blank cheque, which has -not been issued in favour of the complainant, and there is no amount incorporated therein in words. He has submitted that neither a loan was given to the petitioner towards the re-payment whereof such could be issued nor the cheque has been issued in fulfilment of the petitioner's financial obligation, thus it is a case where the bail should have been allowed as the petitioner is behind the bars for the last about six months.
3. We have heard the learned Additional Prosecutor-General, Punjab and the complainant, present in person, who is also an Advocate. From the record of the prosecution, it transpires that the cheque on the basis of which the case has been registered seemingly has some overwriting upon the date of the cheque and the amount in figure. Moreover, the said cheque, was not issued in favour of the complainant; besides there is no amount mentioned in words. The complainant however alleges that this was a 'self cheque' and therefore, it was issued to him and accordingly the dishonouring of the cheque would attract the provisions of section 489-F, P.P.C. He has also mentioned that the amount covered by the cheque was paid by the complainant to the petitioner from time to time for the purposes of the business and it is for the return of such amount. Contrarily, on further query, there is no evidence available with the complainant as to how, when and by what process various amounts were paid to the petitioner for business purposes. To that end, these aspects of the matter have not been taken into consideration by the learned High Court while declining bail to the petitioner. We find these contours of the case to be quite conspicuous and relevant entitling the petitioner to bail when the case does not fall within the prohibitory clause and the maximum sentence for the offence under section 489-F, P.P.C. is three years. At the same time, the petitioner is behind the bars for the last about six months.
4. In light of the above, this petition is converted into an appeal and allowed, the impugned judgment is set aside and the petitioner is admitted to bail subject to furnishing his bail bonds in the sum of Rs.100,000 (one lac) with two sureties in the like amount to the satisfaction of the learned trial Court.
MWA/M-18/SC Bail granted.
2014 S C M R 1369
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Amir Hani Muslim, JJ
Mian MUHAMMAD AKRAM---Petitioner
Versus
The STATE and others---Respondents
Criminal Petition No.52-L of 2013, decided on 29th January, 2013.
(Against the order dated 16-1-2013 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.234-B of 2013)
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Pre-arrest bail, grant of--- Amount given by way of entrustment---Complainant had allegedly handed over some amount to the accused by way of trust---Cheque issued by accused in favour of complainant to return the said amount prima facie was not issued towards repayment of any loan or fulfilment of an obligation so as to attract S. 489-F, P.P.C.---Question as to whether S. 489-F, P.P.C. was attracted in the present case required further inquiry---During investigation no evidence came on record regarding any obligation on the part of the accused to repay any amount to the complainant---Accused had already joined the investigation---Petition for leave to appeal was converted into appeal and allowed, and consequently accused was granted pre-arrest bail.
Petitioner in person.
Complainant in person.
Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab and Sikandar, A.S.-I. for the State.
Date of hearing: 29th January, 2013.
ORDER
ASIF SAEED KHAN KHOSA, J.---Through this petition Mian Muhammad Akram petitioner has sought leave to appeal against the order dated 16-1-2013 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 234-B of 2013 whereby pre-arrest bail was refused to him in case F.I.R. No. 471 registered at Police Station Mustafa Abad, District Lahore on 14-11-2012 in respect of an offence under section 489-F, P.P.C.
2. We have heard the petitioner in person, the complainant in person and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the relevant record of the case with their assistance. It has straightaway been observed by us that according to the F.I.R. the amount in issue had been given by the complainant to the petitioner by way of entrustment and, thus, the cheque statedly issued by the petitioner in favour of the complainant was prima facie not issued towards repayment of any loan or fulfillment of an obligation so as to attract the provisions of section 489-F, P.P.C. We have repeatedly asked the complainant to confirm as to whether he had given the amount in issue to the petitioner by way of an entrustment or as a loan and every time the complainant has insisted that he had handed over the relevant amount to the petitioner only be way of a trust. In these peculiar circumstances of this case the question as to whether the provisions of section 489-F, P.P.C. stand attracted to the allegations levelled by the complainant against the petitioner or not is a question which requires further probe at this stage. The investigating officer present before the Court has categorically stated that during the investigation no evidence has become available on the record regarding any obligation on the part of the petitioner to repay any amount to the complainant. The investigating officer has confirmed the fact that the petitioner has already joined the investigation. In these circumstances insistence by the local police upon arrest of the petitioner has prima facie appeared to us to be smacking of bad faith.
3. For what has been observed above this petition is converted into an appeal and the same is allowed and, consequently, Mian Muhammad Akram petitioner is admitted to pre-arrest bail in the above mentioned criminal case subject to furnishing bail bond in the sum of Rs. 50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Area Magistrate of Police Station Mustafa Abad, District Lahore within a period of two weeks from today.
MWA/M-34/SC Bail granted.
2014 Y L R 1171
[Lahore]
Before Abdus Sattar Asghar, J
MUHAMMAD ASHRAF CHOUDHRY---Petitioner
Versus
The STATE and others---Respondents
Criminal Miscellaneous No.3169-B of 2014, decided on 14th March, 2014.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---F.I.R. was lodged after inordinate delay of five months, without assigning any sufficient reason for such delay---Complainant, prior to registration of present case had also got recorded a case under S.489-F, P.P.C. against accused with the same allegation, but the complainant had concealed that fact---Plea of accused that cheques were given to complainant as guarantee, could not be discarded outright---Dishonest intention in issuing the cheque was sine qua non to attract the offence under S.489-F, P.P.C., which was yet to be established during course of evidence---Alleged guilt of accused, in circumstances was necessarily a matter of further probe---No recovery was pending against accused---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Investigation of the case was complete and accused was behind the bars since 22-1-2014, and accused was no more required by the Police for further investigation---No progress in the trial, despite submission of challan---Accused's incarceration, was not likely to serve any cause of justice---Bail could not be refused, in such like cases, as a matter of punishment---Prosecution had not produced any material with regard to accused's conviction in any of other criminal cases allegedly registered against him---Mere pendency of any other criminal case, was no hindrance for grant of post-arrest bail to accused, who otherwise was entitled to the relief on merits---Accused was admitted to bail, in circumstances.
Ch. Saif Ullah Warriach for Petitioner.
Ch. Ahmed Raza, A.P.-G. for the State with Muhammad Aslam A.S.-I.
Sardar Muhammad Khalil for the Complainant.
ORDER
ABDUS SATTAR ASGHAR, J.---As per certificate this is petitioner's first post-arrest bail before this Court in this case.
2. Muhammad Ashraf Choudhry petitioner/accused in case F.I.R. No.59/ 2014 dated 16-1-2014 under section 489-F, P.P.C. Police Station Satellite Town Gujranwala seeks post-arrest bail through this petition.
3. As per F.I.R. lodged on 16-1-2014 on the application of Maqsood Ahmed complainant it is alleged that petitioner purchased motorcycles from him; that petitioner paid some of the amount in cash and for the payment of balance amount he issued a Cheque No.0186711 dated 24-7-2013 amounting Rs.7,00,000 to be drawn on Dubai Islamic Bank in favour of complainant which was bounced due to objection of 'stop payment'.
4. It is argued by the learned counsel for the petitioner that he is falsely implicated with malice; that there is unexplained delay of more than five months in lodging of the F.I.R.; that as a matter of fact the petitioner issued various cheques in favour of the complainant as a guarantee; that prior to registration of this case complainant has also lodged another F.I.R. No.916/2013 under section 489-F, P.P.C. with Police Station Satellite Town Gujranwala against the petitioner; that petitioner had no dishonest intention in issuance of the cheque; that the impugned cheque was not issued for repayment of any loan or fulfilment of any financial obligation; that the offence under section 489-F P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C.; that bail in such like cases is a rule and refusal an exception; that the petitioner is behind the bars since 22-1-2014; that no recovery is effected from the petitioner by the police; that investigation is complete; that the case of the petitioner is a matter of further inquiry; that petitioner's incarceration would not serve any cause of justice therefore petitioner is entitled to the concession of post-arrest bail.
5. It is resisted by learned A.P.-G. for the State assisted by learned counsel for the complainant with the contentions that the petitioner is nominated in the F.I.R.; that the cheque was issued by the petitioner with dishonest intention to usurp complainant's amount; that issuance of cheque is not denied by the petitioner; that there is nothing on the record to establish that the impugned cheque was given as guarantee; that the petitioner has criminal antecedents being involved in some other cases of like nature; that there is no malice on the part of complainant or police to falsely implicate the petitioner; that prosecution has prima facie incriminating material against the petitioner to connect him with the alleged offence therefore he is not entitled to the concession of bail.
6. Arguments heard. Record perused.
7. As per contents of F.I.R. occurrence allegedly took place on 25-7-2013 whereas F.I.R. was lodged on 16-1-2014 after delay of more than five months. No sufficient reason is assigned for such inordinate delay in lodging of F.I.R. Admittedly prior to registration of this case complainant has also got recorded a case bearing F.I.R. No.916/2012 under section 489-F, P.P.C. at Police Station Satellite Town Gujranwala against the petitioner with the same allegation. In this case complainant has concealed this fact. In the attending circumstances petitioner's plea that cheques were given to the complainant as guarantee cannot be discarded outrightly. Dishonest intention in issuing the cheque is sine qua non to attract the offence under section 489-F P.P.C. which is yet to be established during course of evidence. Alleged guilt of the petitioner therefore is necessarily a matter of further probe. No recovery is pending against the petitioner. The offence under section 489-F, P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C. The investigation of this case is complete and the petitioner is behind the bars since 22-1-2014. Petitioner is no more required by the police for further investigation. Challan has been submitted but there is no progress in the trial. Petitioner's incarceration is not likely to serve any cause of justice at this stage. In such like cases bail cannot be refused as a matter of punishment. As regards petitioner's involvement in couple of cases of like nature allegedly registered against him suffice to say that the prosecution has not produced any material with regard to petitioner's conviction in any of the criminal cases registered against him. Mere pendency of any other criminal case is no hindrance for grant of post-arrest bail to the petitioner who is otherwise entitled to the relief on merits.
8. For the above discussion and reasons, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surely in the like amount to the satisfaction of the learned trial Court.
HBT/M-82/L Bail granted.
2017 S C
M R 1944
[Supreme
Court of Pakistan]
Present:
Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ
Dr.
MUHAMMAD TARIQ---Petitioner
Versus
The
STATE and others---Respondents
Criminal Petition No. 692-L of 2017, decided on 7th September, 2017.
(Against the order dated 21.03.2017 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 2581-B of 2017)
(a) Criminal Procedure
Code (V of 1898)---
----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for cancellation of bail, dismissal of---Case had been instituted by the complainant after about three years, two months and fourteen days of the alleged transaction between the parties leading to dishonouring of the relevant cheque---Such delay had never been properly explained by the complainant---Alleged offence under S. 489-F, P.P.C. did not attract the prohibitory clause contained in subsection (1) of S. 497, Cr.P.C.---Accused had been admitted to post-arrest bail by the High Court after he had already spent about three months in jail and his continued custody in jail was not likely to serve any beneficial purpose---Suit for recovery of the relevant amount filed by the complainant against the accused was already pending before a civil court---Investigation of the case had already been finalized and a challan had been submitted---No allegation had been levelled against the accused regarding any misuse or abuse of the concession of bail---Petition seeking cancellation of bail awarded to accused was dismissed accordingly.
(b) Criminal Procedure
Code (V of 1898)---
----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Bail, cancellation of---Scope---Where investigation of the case had already been finalized and a challan had been submitted against the accused, the Supreme Court was generally slow in canceling bail at such stage.
Nemo for Petitioner.
Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondent No.2.
Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Sana Ullah, S.-I. for the State.
Date of hearing: 7th September, 2017.
ORDER
ASIF SAEED KHAN KHOSA, J.---An application had been received by the office of this Court yesterday from the learned counsel for the petitioner seeking an adjournment as the learned counsel for the petitioner had "gone to attend marriages of his nephew and niece at District Muzaffargarh". The office of this Court had informed the learned Advocate-on-Record for the petitioner yesterday that the hearing of this petition shall not be adjourned on the above mentioned ground and that the learned Advocate-on-Record ought to appear before this Court today so as to address arguments on behalf of the petitioner in the absence of his learned counsel. The petitioner, the learned counsel for the petitioner and the learned Advocate-on-Record for the petitioner have failed to appear before this Court today despite the above mentioned information supplied by the office of this Court to the learned Advocate-on-Record. In these circumstances we have not felt persuaded to adjourn the hearing of this matter.
2. After going through the memorandum of this petition and the documents appended therewith and after hearing the learned Additional Prosecutor-General, Punjab appearing for the State and the learned counsel for respondent No. 2 we have noticed that the criminal case in hand had been instituted by the complainant after about three years, two months and fourteen days of the alleged transaction between the parties leading to dishonouring of the relevant cheque and such delay had never been properly explained by the complainant. The alleged offence under section 489-F, P.P.C. does not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Respondent No. 2 had been admitted to post-arrest bail by the High Court after he had already spent about three months in jail and his continued custody in jail was not likely to serve any beneficial purpose at that stage. A suit for recovery of the relevant amount filed by the present petitioner/complainant against respondent No. 2 is already pending before a civil court. The investigation of the present criminal case has already been finalized and a Challan has been submitted and this Court is generally slow in canceling an accused person's bail at such a stage of a criminal case. The reasons recorded by the High Court for admitting respondent No. 2 to post-arrest bail have not been found by us to be averse to the settled principles governing the law of bail. It is trite that considerations for grant of bail and those for its cancellation are entirely different. No allegation has been leveled before us regarding any misuse or abuse of the concession of bail by respondent No. 2. In these circumstances no occasion has been found by us for interference with the exercise of jurisdiction and discretion in the matter by the High Court. This petition is, therefore, dismissed and leave to appeal is refused.
MWA/M-46/SC Petition dismissed.
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