PLJ 2023 Cr.C. (Note) 246
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
versus
STATE and another--Respondents
Crl. Misc. No. 8595-B of 2022, decided on 02.01.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Panel Code, 1860, S. 489-F--No distinction regarding the sentence, depending upon the value of the cheque--Previous involvement--Post arrest bail, grant of--Petitioner had drawn a cheque of the total value of Rs.2,50,00,000/- and dishonestly issued the same--FIR was got lodged after the order had been passed by the Ex-Officio Justice of Peace--Concession of bail is a procedural relief having nothing to do with the final decision of the trial--S. 489-F PPC carries the maximum punishment of imprisonment for three years--There is no distinction regarding the sentence which can be passed, depending upon the value of the cheque--Courts have invariably leaned favourably in the granting of bail when the case is dependent upon documentary evidence and the same is in possession of the prosecution agency--Apex Court of the Country does not consider the pendency of the cases as a valid ground to deprive a citizen from the benefit which law provides in his favour--Petition is allowed and the petitioner is admitted to post arrest bail. [Para 2 & 4] A, B, C, D, E, F, G
Ref. 1996 SCMR 1132; PLD 2008 SC 438; PLD 1972 SC 81]
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Bail is not be withheld as a punishment.
[Para 4] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Qanun-e-Shahadat Order, 1984, Article 68--Previous involvement---Involvement of the accused in previous cases without conviction cannot be used as corroborative evidence in a criminal matter. [Para 4] G
Ref. 2012 SCMR 573.
Khawaja Qaiser Butt, Advocate for Petitioner.
Mr. Sajjad Haider Maitla, Advocate for Complainant/ Respondent No. 2.
Mr. Ashfaq Ahmed Malik, Deputy Prosecutor General for State.
Date of hearing: 02.01.2023.
Order
Through the instant petition filed under section 497 Cr.P.C., the petitioner namely Arslan Ali seeks post arrest bail in case F.I.R. No.316 of 2022 dated 08.03.2022, registered in respect of an offence under section 489-F P.P.C., at police station Baha-ud-Din Zakriya, District Multan.
2. Precisely stated, the case of the prosecution, as unfolded from the F.I.R., is that the petitioner had drawn a cheque of the total value of Rs. 2,50,00,000/- and dishonestly issued the same to the complainant, which on presentation before the concerned bank authorities, was dishonoured.
3 I have heard the learned counsel for the petitioner, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance.
4. This is a bail after arrest and only a tentative assessment of the evidentiary material produced before the court is permissible at this stage. A perusal of the record reveals that the instant FIR was registered after a delay. The cheque was issued to the complainant in the year 2021, dishonoured on 29.08.2021, and thereafter, the complainant/respondent No. 2, approached the learned Ex-Officio Justice of Peace with the complaint of non-registration of the FIR and subsequently the instant FIR was got lodged on 08.03.2022, after the order had been passed by the Ex-officio Justice of Peace. No reasonable explanation, much less plausible, has been given by the complainant/respondent No. 2 for this deferral in filing an application under section 22-A/22-B Code of Criminal Procedure, 1898 and the subsequent delay in the registration of the F.I.R. The learned Deputy Prosecutor General has submitted that the petitioner caused the financial ruin of the respondent No. 2, the complainant of the F.I.R. I have given profound consideration to the fact that the petitioner is saddled with the responsibility of depriving the complainant from a huge amount of Rs. 2,50,00,000/. This is a settled principle that the concession of bail is a procedural relief having nothing to do with the final decision of the trial. If a person, otherwise is found entitled to the concession of bail, his liberty cannot be curtailed on the ground of the charge being of heavy amount. Even otherwise, the offence punishable under Section 489-F P.P.C. carries the maximum punishment of imprisonment for three year. There is no distinction regarding the sentence which can be passed, depending upon the value of the cheque. Since the above provision of law does not carry any such distinction, the maximum sentence which can be executed upon the petitioner remains to be three years if the case is proved. It may further be noted that the case against the present petitioner is almost entirely reliant on documentary evidence which, admittedly, is in possession of the prosecution and clearly there is no possibility of the petitioner tampering with the same. The Courts have invariably leaned favourably in the granting of bail when the case is dependent upon documentary evidence and the same is in possession of the prosecution agency. Reliance in this regard is placed on "Saeed Ahmed Vs. The State " (1996 SCMR 1132) wherein it has been held as under:--
"The learned counsel, for the petitioner contended that there is no prohibition for grant of bail in respect of offences mentioned above, but with mala fide intention subsequently offence under section 409, P.P.C. has also been added in order to bring the petitioner's case within the prohibitory clause of section 497, Cr.P,C. The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. The objection of the learned counsel regarding addition of section 409, P.P.C. may carry some weight while considering the bail, application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner on furnishing one surety in the sum of Rs. 50,000 to the satisfaction of the Deputy Registrar, Supreme Court, Lahore.”
Reliance is also placed on the case of "Muhammad Nawaz Vs. The State through Chairman N.A.B. Islamabad and another” (PLD 2008 SC 438). It has been observed by the august Supreme Court of Pakistan in the case of "Manzoor and 4 others versus The State" (PLD 1972 SC 81) as under:-
"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 reasonable grounds appear to exist to disclose their complicity. "
The learned Deputy Prosecutor General states that the petitioner is involved in one other case related to the same offence. Mere registration of cases without conviction in any of them cannot be deemed sufficient to label a person as a dangerous or a habitual criminal, entailing dismissal of the petition. Suffice is to observe that the involvement of the accused in previous cases without conviction cannot be used as corroborative evidence in a criminal matter as previous bad conduct is not relevant as per Article 68 of the Qanun-e-Shahadat Order, 1984. Article 68 of the Qanun-e-Shahadat Order, 1984 provides as under:-
68. Previous bad character not relevant, except in reply: In criminal proceedings the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character, in which case it become relevant.”
Reliance is placed on case of Jamal-ud-Din alias Zubair Khan vs. The State (2012 SCMR 573) wherein it has been held by the august Supreme Court of Pakistan as under:--
"The argument that the petitioner has been involved in two other cases of similar nature would not come in the way of grant of petition so long as there is nothing on the record to show that he has been convicted in any one of them".
Moreover, even the Apex Court of the country does not consider the pendency of the cases as a valid ground to deprive a citizen from the benefit which law provides in his favour. It is the conviction which matters as in that instance the Court reaches to the ultimate decision after collecting considerable, substantial and legal evidence and on mere pendency of the cases liberty of any person cannot be curtailed. The petitioner was arrested in the case on 24.10.2022 and is since in custody. The allegations against the petitioner are yet to be proved by the prosecution in this case. Based on the particular facts and circumstances of this case, where the trial is likely to be lengthy and there have been no allegations that the petitioner would abscond or interfere with witnesses, so, keeping the petitioner behind bars would serve no useful purpose.
5. For the foregoing reasons the petition in hand is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,800,000/- (Rupees one million and Eight hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. Additionally, a direction is issued to the learned trial court to conclude the trial of the case expeditiously, preferably within a period of four months from the receipt of the certified copy of this order. It is made clear if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial or if the petitioner misuses the concession of bail in any manner or if the petitioner absents himself from the learned trial Court, then the learned trial Court shall be at liberty to cancel the bail of the petitioner in accordance with the law.
(M.A.B.) Bail allowed
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