PLJ 2023 Cr.C. 228
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--The word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read as vice versa to
give effect to manifest intention of Legislature as disclosed from context--The aforesaid three types of punishments provided under Section 489-F, PPC are in alternative to each other as expression “or” has been used therein--The insertion of word “or” by legislature in Section 489-F, PPC, reflects its intention that a sentence of imprisonment is not mandatory, and it has been left to discretion of Court, as only a sentence of fine can also be imposed--The use of word “or” clearly reflects that a disjunctive punishment of fine has also been provided in Section ibid--The use of word “or” signifies a disjunctive sense and it cannot be read as “and”, unless of course, context provides so--The word “Or” in, PPC, while detailing punishments, should be taken as “disjunctive” corresponding to word “either” and legally cannot be taken as interchangeable to word “and”--The use of word “OR” legally speaks about choosing one out of two or more options which (act of choosing) shall be “legal”. [P. 231] A
PLD 2019 Sindh 585 & PLD 2019 SC 201.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail after arrest, grant of--Allegation of--Dishonoured of cheque--The maximum punishment of offence provided under Section 489-F, PPC is not more than imprisonment for three years or fine or both, as such, same is not covered by prohibition contained in sub-section (1) of Section 497, Cr.P.C.--In non-bailable offences falling in second category i.e. punishable with imprisonment for less than ten years, grant of bail is a rule and refusal an exception--No exceptional circumstances could be pointed out by prosecutor as well as counsel for complainant, as enumerated in Tariq Bashir supra--The petitioner is behind bars since date of his arrest and his person is no more required to investigating agency for purpose of further investigation--He is a previous non-convict having no criminal antecedents--No useful purpose would be served by keeping petitioner behind bars for an indefinite period.
[Pp. 231 & 232] B, C & E
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Scope of--Civil proceedings--Civil Procedure Code, (V of 1908), O.XXXVII, R. 2--For recovery of amount, civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908 (“CPC”)--Civil litigation between parties is also pending as complainant/special attorney has also filed a suit under Order XXXVII Rule 2 CPC for recovery of amount mentioned in disputed cheque--Involvement of a huge amount does not enlarge punitive scope of Section 489-F, PPC. [Pp. 231 & 232] D
2020 SCMR 1268
Syed Farhad Ali Shah, Advocate for Petitioner.
Hafiz Asghar Ali, Deputy Prosecutor General for State.
Mr. Shahzad Saleem, Advocate along with Complainant.
Date of hearing: 14.9.2022.
PLJ 2023 Cr.C. 228
[Lahore High Court, Lahore]
Present: Ali Zia Bajwa, J.
Rao GHULAM MUSTAFA--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 41311-B of 2022, decided on 14.9.2022.
Order
Through this petition filed under Section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.), Rao Ghulam Mustafa (‘petitioner’) seeks his post-arrest bail in case FIR No. 760/2021, dated 15.09.2021, registered under Section 489-F of the Pakistan Penal Code, 1860 (“PPC”) with Police Station Defence-B, District Lahore.
2. Precisely the allegation against the petitioner, as per the contents of the crime report, is that he along with his brother received an amount of 5 lac pounds from his sister Dr. Akhtar-ul-Islam for the purchase of property in her name but the same was not purchased. When the special attorney of Dr. Akhtar-ul-Islam demanded back the said amount, the petitioner issued a cheque of 5 lac pounds of foreign currency account, which was dishonoured on its presentation for encashment before the concerned bank.
3. Heard arguments. Perused police file and material available on the record.
4. It has been straightaway noticed by this Court that the occurrence, in this case, took place on 12.07.2021, whereas the crime report was registered on 15.09.2021. The petitioner issued the cheque in question to the complainant Shakir Mahmood from whom he did not receive any amount rather the complainant is a special attorney of Dr. Akhtar-ul-Islam, sister of the petitioner, who allegedly paid the amount to the petitioner. It is pertinent to observe here that said Dr. Akhtar-ul-Islam neither joined the investigation nor her statement under Section 161, Cr.P.C. is available on the record to substantiate the allegation leveled against the petitioner. No exact dates and time span has been mentioned in the crime report during which the alleged amount was handed over or transferred to the petitioner through bank transactions. Moreover, copy of the special power of attorney, available on the record, nowhere reflects the purpose of sending money to the petitioner as alleged by the complainant/special attorney in the crime report.
5. Admittedly, the punishment provided for the offence under Section 489-F, PPC is imprisonment for three years or fine or both. Section 489-F, PPC has been reproduced hereinafter for better understanding:
489-F – Dishonestly issuing a cheque
Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.
The word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context.[1] The aforesaid three types of punishments provided under Section 489-F, PPC are in alternative to each other as the expression “or” has been used therein. The insertion of word “or” by the legislature in Section 489-F, PPC, reflects its intention that a sentence of imprisonment is not mandatory, and it has been left to the discretion of the Court, as only a sentence of fine can also be imposed. The use of word “or” clearly reflects that a disjunctive punishment of fine has also been provided in the Section ibid. The use of word “or” signifies a disjunctive sense and it cannot be read as “and”, unless of course, the context provides so. The word “Or” in, PPC, while detailing punishments, should be taken as “disjunctive” corresponding to the word “either” and legally cannot be taken as interchangeable to word “and”. The use of word “OR” legally speaks about choosing one out of two or more options which (act of choosing) shall be “legal”.[2]
6. The maximum punishment of offence provided under Section 489-F, PPC is not more than imprisonment for three years or fine or both, as such, the same is not covered by the prohibition contained in sub-section (1) of Section 497, Cr.P.C. In view of the dictum laid down in Tariq Bashir & 5 others vs. The State PLD 1995 SC 34, in non-bailable offences falling in the second category i.e. punishable with imprisonment for less than ten years, the grant of bail is a rule and refusal an exception. No exceptional circumstances could be pointed out by the learned prosecutor as well as the learned counsel for the complainant, as enumerated in Tariq Bashir supra. Further wisdom can be extracted from the cases titled Muhammad Tanveer vs. The State – PLD 2017 Supreme Court 733 and Abdul Saboor vs. The State through A.G. Khyber Pakhtunkhwa and another – 2022 SCMR 592.
7. In Abdul Saboor supra, the prestigious Supreme Court of Pakistan held that for recovery of amount, civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908 (“CPC”). Civil litigation between the parties is also pending as the
complainant/special attorney has also filed a suit under Order XXXVII Rule 2 CPC for the recovery of the amount mentioned in the disputed cheque. Involvement of a huge amount does not enlarge the punitive scope of Section 489-F, PPC and is no ground for refusal of bail. Reliance in this regard can be placed on Jahanzeb Khan[3] wherein it was observed by the revered Supreme Court of Pakistan as infra:
“Substantial amounts notwithstanding, nonetheless, offence complained is punishable with three years imprisonment or fine or with both and as such does not attract the statutory bar. Petitioner’s continuous detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment.”
8. The petitioner is behind the bars since the date of his arrest and his person is no more required to the investigating agency for the purpose of further investigation. He is a previous non-convict having no criminal antecedents. No useful purpose would be served by keeping the petitioner behind the bars for an indefinite period.
9. Resultantly, the instant bail petition is allowed and the petitioner is admitted to post-arrest bail, subject to his furnishing bail bonds in the sum of Rs. 5,00,000/- (Rupees five hundred thousand only) with one surety in the like amount to the satisfaction of learned trial Court. It goes without saying that the observations made herein above are tentative in nature, which shall have no bearing on the merits of the case and the trial Court would, thus, be free to decide the case on the basis of evidence adduced at the trial.
(A.A.K.) Bail allowed
[1]. Principles of Statutory Interpretation, 12th Edition 2010, by Justice G.P. Singh at pages 477 and 478 & SUO MOTU CASE NO.8 OF 2018 AND CIVIL MISC. APPLICATION NO.649 -L OF 2018 – PLD 2019 SC 201
[2]. Fahad Parekh vs. The State - PLD 2019 Sindh 585.
[3]. Jehanzeb Khan vs. The State through A.G. Khyber Pakhtunkhwa and others - 2020 SCMR 1268.
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