-Post arrest bail--Grant of--Dishonoured of Cheque---Case does not fall within the prohibitory clause of Section 497, Cr.P.C and the concession of grant of bail must be favourably considered and should only be denied in exceptional cases--

 PLJ 2021 Cr.C. 1029.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Post arrest bail--Grant of--Dishonoured of Cheque--Case does not fall within the prohibitory clause of Section 497, Cr.P.C and the concession of grant of bail must be favourably considered and should only be denied in exceptional cases--Petitioner was not required for further investigation--Petitioner is behind the bars for the last more than four months in an offence which entails punishment up to three years while conclusion of trial is not in sight--Mere involvement without conviction in other cases cannot be considered a bar to extend the concession of bail if the case for grant of bail is made out--Offence does not fall within the ambit of prohibitory clause of section 497 Cr.P.C--Bail was allowed.      

                                                              [Pp. 1031 & 1032] A, B, C & D

2020 SCMR 861; 2018 P.Cr.L.J 469; 2020 SCMR 1268;
2011 SCMR 1708; 2020 P.Cr.L.J 268; 2020 P.Cr.L.J 392;
PLD 1972 SC 81; 2015 P.Cr.L.J 129; 2004 SCMR 1467;
1999 MLD 1643; 2001 PCr.LJ 1802 ref.

Mian Asad Hayat Awan, Advocate for Petitioner.

Mr. Asad Ullah Taimur, State Counsel.

Mr. Muhammad Shoaib, Advocate for Complainant.

Date of hearing: 29.4.2021.

 PLJ 2021 Cr.C. 1029
[Islamabad High Court, Islamabad]
Present: Fiaz Ahmad Anjum Jandran, J.
HASEEB HASHMI--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 372-B of 2021, decided on 29.4.2021.

Order

This is post-arrest bail petition by accused-petitioner (Haseeb Hashmi) in F.I.R. No. 224 dated 21.11.2020, under section 489-F P.P.C. Police Station Margalla, Islamabad.

2. According to the allegations set-forth in the F.I.R, complainant struck a deal for the purchase of a residential Flat from the petitioner for consideration of Rs. 2,700,000/- through a written agreement by paying Rs. 1,000,000/- as earnest money while the petitioner had to transfer the Flat in the name of complainant till 20.08.2020 after receiving of remaining sale consideration of
Rs. 1,700,000/-; that petitioner despite persistent demands failed to transfer the Flat in the name of the complainant and for the return of amount received, issued cheque having worth of Rs. 1,000,000/- which on presentation before the concerned bank on the date fixed i.e. 21.09.2020 stood dishonoured for want of funds and incorrect signatures.

3. Learned counsel for the petitioner argued that there is a delay of two months in lodging the F.I.R; that the cheque was not issued by the petitioner and this fact is supported by the contents of F.I.R itself which state that the cheque bear incorrect signatures; that there is no evidence of receipt of Rs. 1,000,000/- by the petitioner who was just a guarantor while cheque book had been with the complainant; that there were business relations between the parties and the petitioner has already filed a suit for cancellation of documents in January, 2021; that offence does not fall within the ambit of prohibitory clause of section 497 Cr.P.C; that petitioner is behind the bars since his arrest i.e. 07.12.2020 (for more than four months) and no more required for further investigation, therefore, entitled to the concession of post-arrest bail. Learned counsel placed reliance upon case laws reported as 2020 SCMR 861 & 2018 P.Cr.L.J 469 Lahore.

4. On the other hand, learned counsel for the complainant argued that sale agreement and affidavit are admitted documents; that there was no business relations between the petitioner and complainant and that petitioner is a habitual offender, involved in three other cases, therefore, not entitled to the concession of bail.

5. Learned State Counsel affirmed that petitioner is behind the bars since 07.12.2020; investigation is complete while the trial has not yet commenced.

6. Arguments heard, record perused.

7. Admittedly, investigation in the subject case has already been completed and the petitioner is no more required for further probe while offence entails punishment up to three years, which does not fall within the ambit of prohibitory clause of section 497 Cr.P.C. The Hon’ble Apex Court in recent judgment reported as “Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhawa and others” (2020 SCMR 1268), has graciously held that:

“Substantial amounts notwithstanding, nonetheless, offence complained is punishable for three years imprisonment or fine or with both and as such does not attract the statutory bar. Petitioners continuous detention is not likely to improve upon investigation process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment.”

8. Likewise, the Hon’ble Apex Court in case reported as “Riaz Jafar Natiq v. Muhammad Nadeem Dar” (2011 SCMR 1708), allowed bail in a case where the allegation against the accused was that he issued cheque of Rs. 20 Million which on presentation was dishonoured. The Hon’ble Apex Court observed that the case does not fall within the prohibitory clause of Section 497, Cr.P.C and the concession of grant of bail must be favourably considered and should only be denied in exceptional cases.

9. Moreover, in case laws reported as “Anees Ahmad Khan v. State” (2020 P.Cr.L.J Islamabad 268) and “Khurram Shahzad v. State” (2020 P.Cr.L.J Islamabad 392) it is held that maximum punishment for the offence under Section 489-F P.P.C is three years which does not fall within the prohibitory limb of Section 497 Cr.P.C; person of the petitioner was not required for further investigation; in such like cases grant of bail is a rule and refusal is an exception and that the bail could not be withheld as a measure of punishment.

10. The petitioner is behind the bars for the last more than four months in an offence which entails punishment up to three years while conclusion of trial is not in sight, therefore, in the attending circumstances; petitioner has been able to make out a case for grant of post arrest bail at this stage.

11. The circumstances of the present case warrant exercise of discretion as the bail cannot be withheld as of punishment. Reliance is placed upon “Manzoor and 4 others v. The State” (PLD 1972 SC 81) wherein the Hon’ble Apex Court held that:

“It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reason able grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.”

12. The provision of section 489-F P.P.C is not intended to be used for recovery of amount and the same is designed to determine the guilt and award sentence. In order to effect recovery, the proper course is to resort civil action in terms of Order XXXVII C.P.C. Guidance is sought from the case law reported as “Muhammad Irfan v. State” (2015 P.Cr.L.J 129).

13. As far as involvement of the petitioner in three other cases is concerned, suffice it to say that mere involvement without conviction in other cases cannot be considered a bar to extend the concession of bail if the case for grant of bail is made out. Reliance is placed upon case laws reported as Aftab Hussain v. The State (2004 SCMR 1467), Sher alias Shera and another v. The State (1999 MLD 1643) and Karim Bux v. The State (2001 PCr.LJ 1802).

14. In line with above discussion/findings, tentative assessment of the material available on record guides to hold that the offence alleged against the petitioner entails punishment up to three years which does not fall within the ambit of prohibitory clause of section 497 Cr.P.C, in like offence, grant of bail is a rule and refusal is an exception, he is behind the bars for the last more than four months, investigation has already been completed and the dispute is of civil nature, the case of the petitioner has become one of further inquiry.

15. In view of above, instant bail petition is allowed, petitioner (Haseeb Hashmi) is admitted to post-arrest bail in this F.I.R subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (one lakh) with one surety in the like amount to the satisfaction of the learned Trial Court.

16. Needless to mention that this is tentative assessment for the purpose of this petition only, which shall not affect/influence trial of this case in any manner.

(K.Q.B.)          Bail allowed