PLJ 2023 Cr.C. (Note) 266
[Lahore High Court, Multan Lahore]
Present: Muhammad Tariq Nadeem, J.
FAISAL HAFEEZ--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 297-B of 2023, decided on 31.1.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Issuance of cheque--Bail After arrest--grant of--Petitioner issued two cheques amounting to Rs. 52,50,000/- and cheque amounting to Rs. 28,42,500/- in favour of the complainant--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.--The concession of bail be favourably considered and should only be declined in exceptional cases--The petitioner is behind the bars since his arrest and he is no more required for further investigation--Petitioner is allowed post-arrest bail.
[Para 2, 4, 5, 6 & 7] A, B, C, D, E & F
PLD 1995 SC 34; 2011 SCMR 1708; PLD 2017 SC 733; 2020 SCMR 1268; 2021 SCMR 822; 2021 SCMR 1227 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Recovery--Registration of criminal case under the said offence is not to be used as a tool for the recovery of amount. [Para 5] D
2017 YLR Note 47; 2022 SCMR 592 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Documentary evidence--The petitioner is almost entirely reliant on documentary evidence which, admittedly is in the possession of the prosecution.
[Para 6] E
1996 SCMR 1132; PLD 2008 SC 438 ref.
Khawaja Qaiser Butt, Advocate for Petitioner.
Mr. Hassan Mehmood Khan Tareen, DPG for State.
Mr. Abdul Waheed Khan Tareen, Advocate for Complainant.
Date of hearing: 31.1.2023.
Order
Through this petition filed under Section 497, Cr.P.C. the petitioner seeks bail after arrest in case FIR No. 1299 dated 21.09.2022, under Section 489-F, PPC, registered at Police Station Bahauddin Zakariya, Multan.
2. Succinctly, the facts of the case as spelt out from the contents of FIR are that the petitioner issued two cheques i.e. Cheque No. 62674953 dated 30.06.2022 (amounting to Rs. 52,50,000/- and Cheque No. 000045864 dated 25.10.2022 (amounting to Rs. 28,42,500/- in favour of complainant for discharging the liability and when Cheque No. 62674953 dated 30.06.2022 amounting to Rs. 52,50,000/- was presented in concerned bank for encashment, it was dishonoured. Hence, the FIR.
3. Tripartite arguments heard. Record perused.
4. After going through the narration of FIR and the material collected by the police and presented before this Court, it has straightaway been noticed by this Court that 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 Law officer for refusal of bail. Reliance is placed on the case-law titled as “Tariq Bashir and 5 others v. The State” (PLD 1995 SC 34), “Riaz Jaffar Natiq v. Muhammad Nadeem Dar and others” (2011 SCMR 1708), “Muhammad Tanveer v. The State and another” (PLD 2017 SC 733), “Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others” (2020 SCMR 1268), “Sheikh Abdul Reheem v. The State and another” (2021 SCMR 822) and “Syeda Sumera Andleeb v. The State and another” (2021 SCMR 1227).
5. Moreover, cheque is a negotiable instrument falling within the domain of Order XXXVII of CPC, therefore, registration of criminal case under the said offence is not to be used as a tool for the recovery of amount for which law provides a separate remedy under the Civil Procedure Code, 1908. Reliance is placed upon the case-law titled as “Qaiser Ali Khan v. The State and another” (2017 YLR Note 47) and “Abdul Saboor v. The State through A.G. KPK and another” (2022 SCMR 592).
6. It may further be noted that the case against the 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 favour 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 v. The State” (1996 SCMR 1132) and “Muhammad Nawaz v. 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. For the foregoing reasons, this petition is accepted and the petitioner 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 trial 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.
(K.Q.B.) Petition accepted
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