S. 489-F--Bail after arrest, grant of--Dishonoured of cheque--It does not fall under prohibitory clause--Case against present petitioner is almost entirely reliant on documentary evidence which, admittedly is in possession of prosecution and there is no possibility of petitioner’s tampering with same-

 PLJ 2022 Cr.C. (Note) 138

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

----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail after arrest, grant of--Further inquiry--Allegation of--Dishonoured of cheque--It does not fall under prohibitory clause--Where an offence falls within ambit of non-prohibitory clause, concession of bail; be, favourably considered and should only be declined in exceptional cases--Case against present petitioner is almost entirely reliant on documentary evidence which, admittedly is in possession of prosecution and there is no possibility of petitioner’s tampering with same--Keeping petitioner incarcerated would tantamount to punishing him despite fact that a person is presumed to be innocent until proven guilty--The Courts have invariably leaned favourably in granting of bail when case is dependent upon documentary evidence and same is in possession of prosecution agency—Petition accepted. [Para 5 & 6] A & B

PLD 1995 SC 34, 2011 SCMR 1708, PLD 2017 SC 733, 2020 SCMR 1268, 2021 SCMR 822, 2021 SCMR 1227 & 2021 MLD 1597.

Mr. Nasir Mahboob Tiwana, Advocate for Petitioner.

Mr. Muhammad Moeen Ali, DPG for State.

Rai Shahid Abbas, Advocate with Complainant.

Date of hearing: 23.2.2022.

 PLJ 2022 Cr.C. (Note) 138
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
KHADIM ALI--Appellant
versus
STATE and another--Respondents
Crl. Misc. No. 2340-B of 2022, decided on 23.2.2022.

Order

Through this petition filed under Section 497, Cr.P.C., petitioner Khadim Ali seeks bail after arrest in case F.I.R. No. 286/ 2020 dated 22.02.2020 in respect of an offence under Section 489-F, PPC, registered at Police Station Iqbal Town, District Lahore.

2. Succinctly, the facts of the case as spelt out from the contents of the FIR are that petitioner issued a cheque amounting to Rs. 50,00,000/- in favour of complainant for discharging the liability and when the same was presented in the concerned bank for encashment, it was dishonoured. Hence, the FIR.

3. Contentions heard. Record perused.

4. It has been noticed that according to the prosecution’s own story, cheque was dis-honoured on 10.02.2020 whereas the FIR was got registered on 22.02.2020 with an unexplained delay of almost 12-days. There is no exegesis qua such delay in lodging the FIR, meaning thereby, the FIR has been lodged after due deliberation and consultation. Reliance can be made upon case titled as “Khair Muhammad and another vs. The State through PG Punjab and another” (2021 SCMR 130).

5. The offence with which the petitioner has been charged is punishable upto three years R.I. or with fine and it does not fall under the prohibitory clause of Section 497, Cr.P.C. It has vociferously been contended by the learned Deputy Prosecutor General assisted by learned counsel for the complainant that petitioner cannot claim bail as of right in non-bailable offence. In this context, it is observed that where an offence falls within the ambit of non-prohibitory clause, the concession of bail be favourably considered and should only be declined in exceptional cases. No exceptional circumstance has been pointed out by the learned Deputy Prosecutor General for refusal of bail. Reliance is placed upon the following case laws titled as “Tariq Bashir and 5 others versus The State” (PLD 1995 SC 34), “Riaz Jaffar Natiq vs. Muhammad Nadeem Dar and others” (2011 SCMR 1708), “Muhammad Tanveer vs. The State and another” (PLD 2017 SC 733), “Jehanzeb Khan versus The State through A.G. Khyber Pakhtunkhwa and others” (2020 SCMR 1268) and “Sheikh Abdul Reheem vs. The State and another” (2021 SCMR 822), “Syeda Sumera Andleeb vs. The State and another” (2021 SCMR 1227), Khizar Hayat vs. The State and others” (2021 MLD 1597) and in unreported judgments of Hon’ble Supreme Court of Pakistan titled as “Salman Khan vs. The State” in (Crl. P. No. 127-Q/2021) dated 13.01.2022, “Abdul Saboor vs. The State through A.G. KPK and another” in (Crl. P. No. 1384 of 2021) dated 25.01.2022.

6. It may further be noted that the case against the present petitioner is almost entirely reliant on documentary evidence which, admittedly is in the possession of the prosecution and there is no possibility of the petitioner’s tampering with the same. Keeping the petitioner incarcerated would tantamount to punishing him despite the fact that a person is presumed to be innocent until proven guilty. The Courts have invariably leaned favourably in the granting of bail when the case is dependent upon documentary evidence and the same is in the possession of prosecution agency. Reliance in this regard is placed upon the cases titled as “Saeed Ahmed vs. The State” (1996 SCMR 1132) and ‘Muhammad Nawaz vs. The State through Chairman, NAB, Islamabad and another” (PLD 2008 SC 438).

7. In view of the above, the case of the petitioner has become one of further inquiry falling under sub-section (2) of Section 497, Cr.P.C. The petitioner is behind the bars since his arrest and he is no more required for further investigation. He has no antecedents of criminal activity and no more required by the police, hence, further incarceration of the petitioner would not serve any useful purpose to the prosecution.

8. In the eventuality of above-said discussion, this petition is accepted and petitioner Khadim Ali is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of learned trail Court.

9. However, it is clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.

(A.A.K.)          Petition accepted