PLJ 2021 Cr.C. 1377
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Post arrest bail--Grant of--Investigation in the subject case has already been completed and the petitioner is no more required for further probe--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--Provision of section 489-F P.P.C is not intended to be used for recovery of amount--Bail allowed. [Pp. 1379 & 1380] A, B & C
2020 SCMR 1268; 2011 SCMR 1708, 2020 P.Cr.L.J. 268; 2013 MLD 140; 2005 P.Cr.L.J. 677; PLD 2016 SC 171, 2019 YLR 2379; 2019 MLD 350; 2019 P.Cr.L.J. 1759; 2020 P Cr.L.J 392; PLD 1972 SC 81;
2015 P.Cr.L.J 129 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Post arrest bail--Previous involvement--Involvement of the petitioner in other cases of like nature without conviction cannot be considered a bar to extend the concession of bail. [P. 1380] C
2004 SCMR 1467; 1999 MLD 1643; 2001 P.Cr.L.J 1802 ref.
Mr. Muhammad Zaki Ullah Qureshi, Advocate for Petitioner.
Mr. Mashood Azam Awan, State Counsel.
Mr. Sajid-ur-Rehman Mashwani, Advocate for Respondent No. 2.
Date of hearing: 21.4.2021.
PLJ 2021 Cr.C. 1377[Islamabad High Court Islamabad]Present: Fiaz Ahmad Anjum Jandran, J.FAISAL SULTAN--AppellantversusSTATE, etc.--RespondentsCrl. Misc. No. 286-B of 2021, decided on 21.4.2021.
Order
This is post-arrest bail petition by accused- petitioner (Faisal Sultan) in F.I.R. No. 331 dated 08.09.2020, under Section 489-F, P.P.C. Police Station Sihala, Islamabad.
2. According to the allegations, set-forth in the F.I.R, petitioner entered into an agreement with the complainant i.e. Punjab Oil Mills Company to act as Distributor and pursuant to agreement, obtained stock worth Rs. 13,329,316/-, paid Rs. 6,037,335/- and for outstanding amount i.e. Rs. 7,078,981/- issued a surety cheque which on presentation, stood dishonoured by the concerned bank.
3. Learned counsel for the petitioner contends that the parties are in business relations and it was a surety cheque; that the payment of outstanding amount could not be made due to untoward business crunch by spread of COVID-19; that no suit for the recovery of outstanding amount has been filed by the complainant company; that the offence does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C; that petitioner is behind the bars since 29.09.2020; investigation has been completed; mere involvement in other cases of like nature is no ground to refuse bail when the case otherwise calls for further inquiry and that bail cannot be withheld as punishment, therefore, petitioner is entitled to the concession of post- arrest bail. Learned counsel placed reliance upon case laws reported as 2011 SCMR 1708, 2020 P.Cr.L.J. 268 (Islamabad) 2013 MLD 140 (Lahore), and 2005 P.Cr.L.J. 677 (Lahore).
4. On the other hand, learned counsel for the complainant argued that issuance of cheque and its’ dishonouring are admitted facts; petitioner is habitual offender involved in other cases of like nature and that no malice or malafide on the part of complainant has been alleged, therefore, petitioner is not entitled to the concession of bail. Learned counsel placed reliance upon case laws reported as PLD 2016 SC 171, 2019 YLR 2379 (Lahore), 2019 MLD 350 (Peshawar), and 2019 P.Cr.L.J. 1759 (Sindh).
5. Learned State Counsel adopted the arguments advanced by learned counsel for the complainant.
6. Arguments heard, record perused.
Description: A7. 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.”
Description: B8. 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 PPC 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. In the present case, investigation has already been completed. The petitioner is behind the bars since his arrest. 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 Supreme Court 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.”
11. The submission of the learned counsel that in case, petitioner is released on bail, complainant may be deprived of his hard earned money, is well responded in the case of “Muhammad Irfan v. State” (2015 P.Cr.L.J 129) in terms that 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.
Description: C12. The involvement of the petitioner in other cases of like nature without conviction cannot be considered a bar to extend the concession of bail if the case 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 “KarimBux v. The State” (2001 P.Cr.L.J 1802).
13. The case law relied upon by learned counsel for the complainant do not extend any help to the complainant due to having distinct facts and circumstances particularly in the light of recent pronouncement of Hon’ble Apex Court (supra).
14. In view of above, instant bail petition is allowed, petitioner (Faisal Sultan) is admitted to post-arrest bail in this F.I.R subject to furnishing bail bonds in the sum of Rs. 2,00,000/- (two lakh) with one surety in the like amount to the satisfaction of the learned Trial Court.
15. 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
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