2021 M L D 947
S.489-F----Criminal Procedure Code (V of 1898), Ss. 345, 497 & 561-A---Dishonestly issuing a cheque---Bail, cancellation of---Compounding of offences---Compromise inter se parties without permission of court---Cancellation of bail on ground of breach of compromise terms----Scope---Accused was released on post-arrest bail after compromise between parties, however, subsequently on breach of compromise terms, upon application of complainant under S. 497(5) Cr.P.C., his bail was recalled---Contention of accused, inter alia, was that once bail was granted, it was not subject to any conditions ---Validity----Offence under S.489-F, P.P.C. was compoundable inter se the parties, without permission of court and concession of bail could be granted to accused after affirmative nod of complainant---Court, in such a case, was not legally bound to consider as to whether accused had made out his case on merits---Accused, if after entering into compromise, once again dishonours his commitment, then same would amount to dishonest act in continuation of earlier breach, rendering him disentitled to enjoy benefit of the compromise---Grant of bail in non-bailable offences was a concession and not a matter of right---Accused, in the present case, had executed undertaking that upon his failure to honour commitment of payment within one month, the complainant had right to seek cancellation of bail, and presumption of truth was attached to judicial proceedings, and such undertaking---Bail of accused had therefore rightly been recalled / cancelled --- Application under S.561-A, Cr.P.C. was dismissed, in circumstances.
ORDER
----Through this application under Section 561-A, Cr.P.C, the petitioner has called in question the vires of order dated 12.01.2021, whereby the application of the complainant/respondent No.3 filed under Section 497(5), Cr.P.C. for recalling/setting aside the bail granting order dated 21.08.2020 was allowed by learned Senior Civil Judge (Criminal Division) and the order dated 10.02.2021 passed by learned Addl. Sessions Judge, Pakpattan Sharif, whereby the criminal revision petition filed by the petitioner was dismissed, in consequence whereof, the petitioner's post arrest bail granted vide order dated 21.08.2020, on the basis of compromise, in case/FIR No.366, dated 02.07.2020, registered under Section 489-F, P.P.C. at Police Station Kalyana, Pakpattan Sharif had been cancelled.
2. Precisely, as per FIR, petitioner dishonestly had issued cheque No.PKUNIL-010900022391779616761-675 of amount of Rs.14,56,000/- of UBL Chowk Marley Branch to the complainant to repay/fulfil his financial obligation, without ensuring that the cheque upon its presentation before the concerned bank be honoured, the bank, on its presentation, on account of paucity of funds has dishonoured the cheque. The petitioner, after his arrest, submitted an application under Section 497, Cr.P.C., seeking his release on post-arrest bail through his counsel specifically pleading in paragraph No.4 thereof regarding his compromise with the complainant, before the learned trial Court, which in its verbatim is reproduced hereunder:-
The bail petition was allowed by the Court of learned Senior Civil Judge (Criminal Division) Pakpattan Sharif, vide its order dated 21.08.2020. Being relevant, the paragraphs Nos.3 and 4 of the said order are reproduced hereunder:-
(3) Learned counsel for the petitioner/ accused has argued that compromise between the petitioner and complainant has been affected. In the last he has prayed that while accepting his application petitioner be directed to be released on bail.
On the other hand, learned counsel for the complainant has raised no objection upon acceptance of instant bail application and complainant has recorded his statement regarding compromise with the petitioner/accused Muhammad Zahid as per terms and conditions of Mark-A and raised no objection upon acceptance of bail application and in this regard, statement of complainant has also been recorded on the back of his affidavit i.e. Mark-A.
The relevant portion out of the text of compromise/ agreement deed/affidavit Mark-A, annexed with the petition is also given below:-
In continuation of the above, after recording the statement of the complainant, the petitioner was ordered to be released on bail from the judicial custody, vide its order dated 21.08.2020 by the Court. After his release on bail, however, the petitioner failed to honour the terms of the compromise and make payment of outstanding amount to the complainant/ respondent No.3, who moved an application under Section 497(5), Cr.P.C. for recalling/setting aside the bail granting order, which was allowed by the learned trial Court vide its order dated 12.01.2021. The petitioner, as aforesaid, moved to the Court of learned Addl. Sessions Judge, Pakpattan Sharif, whereby his revision petition was also dismissed vide its order dated 10.02.2021. Hence, this petition.
3. Learned counsel for the petitioner while relying upon the judgment reported as "Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others" (2020 SCMR 1268) contends that if an accused, on his making out of his case, is released on bail, such order cannot be subjected to any riders or conditions, the order of recalling of bail is not sustainable, the impugned orders, therefore, may be set aside and restoring the order dated 21.08.2020, the petitioner may be admitted to pre-arrest bail.
4. On the other hand, learned Prosecutor while taking exception to the above noted contention has opposed by arguing that learned Magistrate passed the order dated 21.08.2020 after examining the genuineness of compromise inter-se the parties only, which is evident from the grounds he urged through his application, contentions of learned counsel representing their respective parties and the operative part of the order dated 21.08.2020, therefore, the petitioner cannot be allowed to blow hot and cold in the same breath. He has relied upon case reported as "Salman Khalid v. The State and others" (PLD 2020 Lahore 97) besides Sami Ullah and another v. Laiq Zada and another" (2020 SCMR 1115) to contend that being guilty of misuse of concession of bail, the petitioner is not entitled to enjoy the concession of bail as such, the impugned orders being unexceptional, calls for no interference by this Court.
5. Arguments heard and record perused.
6. It may be observed that the alleged offence is compoundable in terms of Section 345, Cr.P.C. For ready reference, the provision of section 345, Cr.P.C. in its verbatim is reproduced as under:-
345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:
Offence
Sections of Pakistan Penal Code applicable.
Persons by whom offence may be compounded.
[Dishonestly issuing a cheque for repayment of loan of fulfillment of an obligation
489-F
The person in whose favour cheque issued.]
The provision of Section 345, Cr.P.C. vis-a-vis the compounding of offences is bifurcated into two categories i.e. with or without the permission of court. The august Supreme Court of Pakistan had expounded this legal preposition in the case titled "Tariq Mehmood v. Naseer Ahmed and others" (PLD 2016 SC 347) as under:-
"Section 345(1), Cr.P.C. enlisted the offences which may be compounded by the specified persons without intervention of any court---Compounding in such cases took effect from the moment the compromise was completely entered into by the parties, the relevant court which was to try the offence in issue was left with no jurisdiction to refuse to give effect to such a compromise and a party to such a compromise could not resile from the compromise at any subsequent stage of the case---On the other hand Section 345(2), Cr.P.C. dealt with cases in which the offences specified therein could be compounded only with the permission of the court and in all such cases any compromise arrived at between the parties on their own at any stage was not to take effect at all unless the court permitted such compromise to be given effect to and the relevant court for the purpose was the court before which prosecution for the relevant offence was pending."
7. The offence under Section 489-F, P.P.C. is cognizable by the police, therefore, a person accused of committing such offence, if arrested has to move for his release on post arrest bail or apprehending his arrest, has to seek pre-arrest bail, from the competent Court. In offences which are compounable inter-se the parties without permission of the court, in case of a compromise, under the law, the Court is not legally bound to consider as to whether the accused has made out his case for his release on bail on merits. The Court while considering the compoundability of such offences and after examining the legality and genuineness of the compromise is bound only to give an affirmative nod to the wishes of the parties through its order.
8. It may be quite relevant to observe that voluntary issuance of a cheque for, repayment of loan or fulfilment of financial obligation, in-fact amounts to giving of an 'undertaking by the concerned person that on its presentation, the cheque shall be honoured/encashed. The dishonest intention of the person, issuing a cheque, becomes evident, the moment through its endorsement in writing, the bank refuses to honour it and simultaneously the commission of offence under Section 489-F, P.P.C. also takes place. The dishonouring of a cheque, in the above context also amounts to breach of commitment/undertaking by the accused which he makes with the payee. After registration of a criminal case under Section 489-F, P.P.C., against him, the accused if enters into a compromise with the person in whose favour, he had issued a cheque, the concession of bail, can be granted to him on the affirmative nod of the complainant because the offence is compoundable inter-se the parties, without permission of the Court. It can safely be concluded that after entering into a compromise with the complainant for making payment of the amount either mentioned in the cheque or settled between the parties through compromise, the accused once again makes a commitment and if it is again dishonoured, it would amount to a dishonest act in continuation of his earlier breach of commitment, thus rendering him disentitled to further enjoyment and reaping the fruit of his misdeed, he earned, by way of compromise. The grant of bail in non-bailable offences is a concession/grace and cannot be claimed as of a right by the accused. There is a judicial consensus that the conduct of the accused is always considered important and relevant.
9. In view of above discussion, the role of the Court in dealing with the offences which are compoundable inter-se the parties, without permission of the court under Section 345(1), Cr.P.C. after examining the genuineness of the compromise, thus confines to finally giving an effect to such compromise by way of their termination in pending proceeding against the accused. It has also been observed that the accused gives an undertaking while entering into a compromise, in any of the form i.e. affidavit, compromise deed etc. normally in writing containing conditions or otherwise of it that in case, he is granted bail, he shall make payment of the amount or fulfil other conditions of the compromise, either mentioned in the cheque or agreed upon inter-se the parties and is tendered for seeking any relief during the pendency of proceedings before the Court. The accused, in this way, succeeds in earning his liberty and saves himself from facing the rigors of remaining in jail, thus such liberty is bartered with the complainant in lieu of his commitment by fulfilling the conditions. The execution of such compromise deed unless and until, adjudged otherwise by a court of competent jurisdiction also amounts to a candid admission of his liability by the accused.
10. Considering the compoundability of the offence under Section 489-F as aforesaid and genuineness of the compromise between the parties, the learned trial Judge, being under no legal obligation to assess the incriminating material available on record to conclude that whether the accused had made out his case of his release on bail within the ambit of further inquiry, proceeded to grant post arrest bail to the petitioner, vide its order dated 21.08.2020, which reads as follows:-
"At the very outset, Muhammad Amin complainant of the present case submitted before the court that he has affected compromise with the petitioner/accused Muhammad Zahid and due to which he has no objection upon acceptance of instant bail application and release of petitioner/accused on bail as per terms and conditions of affidavit i.e. Mark-A and as token of correctness to its statement, his thumb impression/signature along with his photo duly verified by his counsel namely Malik Muhammad Razzaq advocate have been taken over the margin of his statement. Since the offence levelled against the petitioner/accused is compoundable in nature. Hence, in view of the statement got recorded by the complainant, petitioner/ accused Muhammad Zahid is admitted to bail subject to furnishing surety bonds to the tune of Rs.1,00,000/- With one surety in the like amount to the satisfaction of this court.
11. Admittedly, the petitioner while executing settlement / compromise agreement (Mark-A) containing his undertaking had bound himself that after his release on bail, he will pay the amount of cheque No.16761675 i.e. Rs.14,56,000/- within a period of one month, and if he fails in honouring the terms of his compromise/agreement deed, in making payment of the outstanding amount within the requisite time period, the complainant shall have a right to seek cancellation of his bail. The petitioner was released from the jail on the strength of aforesaid order and has been enjoying his liberty. Despite being beneficiary of the compromise deed, the petitioner never raised any objection to the execution of the document Mark-A till the time respondent No.3 moved an application under Section 497(5), Cr.P.C. seeking cancellation / recalling of the bail granting order dated 21.08.2020 because of non-fulfilment of the conditions of compromise which had become part of the judicial record. Needles to observe that a presumption of truth is attached to the judicial proceedings, under the law. In the light of principles laid down in the case reported as "Salman Khalid v. The State and others" (PLD 2020 Lahore 97), wherein it has been held that:-
"It can safely be concluded that after entering into a compromise with the complainant for making payment of the amount either mentioned in the cheque or settled between the parties at the time of their entering into compromise, the accused once again makes a commitment and as such in case he again dishonors his commitment, which will be deemed to be a repetition and in continuation of his earlier breach of commitment, thus rendering him disentitled to further enjoy and reap the fruit of his misdeed, he earned, by way of compromise."
The petitioner is held disentitled to further enjoy the concession of bail, which he earned by way of compromise. By non-adhering to or as a result of non-fulfilment of the conditions contained in the compromise deed, the petitioner has in-fact misused the concession of bail. Needless to say that such concession was extended to the petitioner only and only after its execution, the compromise deed was also tendered in the Court as Mark-A, which has also become part of the bail granting order itself. The learned trial Judge while granting bail being under no legal obligation, as observed hereinabove had given no finding as to whether the petitioner had made out his case for his release on bail or not on merits, thus the case law relied upon by the learned counsel for the petitioner is not applicable to the facts and circumstances of the instant case. It is also exhumatic that there is hardly any uniformity and each and every criminal case rests normally upon distinguishable facts and circumstances. The august Supreme Court of Pakistan in case reported as "Sami Ullah and another v. Laiq Zada and another" (2020 SCMR 1115) while encapsulating the grounds for cancellation or recalling the bail has laid down the principles which for ready reference is reproduced as under:-
"i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice:
ii) That the accused has misused the concession of bail in any manner.
iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.
iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court.
v) That the accused has attempted to interfere with the smooth course of investigation.
vi) That accused misused his librty while indulging into similar offence.
vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused."
12. In view of aforesaid grounds, it is observed that the petitioner has misused the concession of bail by way of non-fulfillment of the conditions of compromise deed Mark-A, by not honouring his commitment/undertaking, thus both the learned courts below have rightly passed the impugned orders, which call for no interference by this Court. Resultantly, the instant petition is dismissed in limine.
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