PLJ 2023 SC (Cr.C.) 287
PLJ 2023 SC (Cr.C.) 287
[Appellate Jurisdiction]
Present: Sayyed Mazahar Ali Akbar
Naqvi and Jamal Khan Mandokhail, JJ.
ABDUL RASHEED--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 294-L of 2023, decided on 24.8.2023.
(On appeal against the order dated 01.03.2023 passed by the Lahore High Court,
Lahore in Crl. Misc. No. 80579-B/2022)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498--Pakistan Penal Code, (XLV of 1860), S.
489-F--Suit for rendition of accounts--Delay in FIR--Repayment of
loan--Dishonour of cheque--Pre-arrest bail--Confirmation of--Petitioner
purchased iron worth Rs.47,00,000/- from the complainant and gave two cheques
amounting to Rs.5,00,000/- each to him--Petitioner has placed on record a copy
of the suit for rendition of accounts--Parties were probably running a business
and the cheques were given as a surety and the same were not meant for
encashment--Cheques in question are of the year 2019 and according to the crime
report the same were dishonoured in the year 2019--Why the complainant kept
quite for three years and did not lodge the FIR on time-- Whether the cheques
were issued towards repayment of loan or fulfillment of an obligation within
the meaning of Section 489-F PPC is a question, which would be resolved by the
trial Court after recording of evidence--The offence does not fall within the
prohibitory clause of section 497 Cr.P.C--Grant of bail in the offences not
falling within the prohibitory clause is a rule and refusal is an
exception--The investigation is complete and the petitioner is no more required
for further investigation--The petitioner has made out a prima facie case
for grant of pre-arrest bail--Confirm the ad interim pre-arrest bail granted to
the petitioner by Supreme
Court. [Pp.
289 & 290] A, B, C & D
PLJ 1995 SC 477; PLD
2009 SC 53 ref.
Mr. Muhammad Zubair
Khalid, ASC a/w Petitioner in Person (Via video link from Lahore).
Mr. Aftab Alam Yasir, ASC and Syed Rifaqat Hussain Shah, AOR for
Complainant.
Mirza Abid Majeed, DPG for State.
Date of hearing:
24.8.2023.
Judgment
Sayyed Mazahar Ali
Akbar Naqvi, J.--Through the instant petition under Article 185(3)
of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has
assailed the order dated 01.03.2023 passed by the learned Lahore High Court,
Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR
No. 3420/2022 dated 21.10.2022 under Section 489-F, PPC at Police Station
Shadbagh, District Lahore, in the interest of safe administration of criminal
justice.
2. Briefly stated the allegation against the petitioner is that he
bought iron worth Rs. 47,00,000/- from the
complainant for which he gave two cheques amounting to Rs. 500,000/- each to
the complainant. However, when the cheques were presented to the Bank, they
were dishonoured.
3. At the very outset, it has been argued by learned counsel for the
petitioner that the petitioner has been falsely roped in this case against the
actual facts and circumstances. Contends that the petitioner and the
complainant were running a joint business and the cheques were not issued
towards repayment of loan or fulfillment of an obligation. Contends that
maximum punishment provided under the statute for the offence under Section
489-F, PPC is three years and the same does not fall within the prohibitory
clause of Section 497, Cr.P.C., therefore, the petitioner deserves to be granted bail.
4. On the other hand,
learned Law Officer assisted by learned counsel for the complainant has
defended the impugned order declining bail to the petitioner. It has been
contended that the petitioner has deprived the complainant of a huge amount and
he remained absconder for 02 years, therefore, he does not deserve any leniency
from this Court.
5. We have heard
learned counsel for the parties at some length and have perused the available
record with their assistance.
6. As per the contents
of the crime report, the complainant was an iron merchant. The petitioner
purchased iron worth Rs. 47,00,000/-from the complainant and gave two cheques amounting to
Rs. 500,000/- each to him. However, when the cheques were presented to the
Bank, they were dishonoured. However, it is the stance of the petitioner that
the petitioner and the complainant had started a business and the cheques in
question were given as a guarantee and the same were not issued towards
repayment of loan or fulfillment of an obligation within the meaning of Section
489-F, PPC. The petitioner has placed on record a copy of the suit for rendition
of accounts filed by him against the defendant before the Civil Court. A bare perusal of the same shows that the parties were probably running
a business and the cheques were given as a surety and the same were not meant
for enacashment. We have noted that the cheques in question
are of the year 2019 and according to the crime report the same were dishnoured
in the year 2019. If that be so, we are unable to understand as to why the
complainant kept quite for three years and did not lodge the FIR on time.
This prima facie supports the stance taken by the petitioner.
Even otherwise, even if the complainant wants to recover his money, Section
489-F of PPC is not a provision which is intended by the Legislature to be used
for recovery of an alleged amount. In view of the above, the question whether
the cheques were issued towards repayment of loan or fulfillment of an
obligation within the meaning of Section 489-F, PPC is a question, which would
be resolved by the learned Trial Court after recording of evidence. The maximum
punishment provided under the statute for the offence under Section 489-F, PPC
is three years and the same does not fall within the prohibitory clause of
Section 497, Cr.P.C. It is settled law that grant of bail in the offences not
falling within the prohibitory clause is a rule and refusal is an exception.
This Court in a number of cases has held that liberty of a person is a precious
right which cannot be taken away without exceptional foundations. We have been
informed that all the material is in documentary shape; the investigation is
complete and the petitioner is no more required for further investigation. So
far as the argument of the learned Law Officer about the absconsion of the
petitioner is concerned, it is settled law that absconsion cannot be viewed as
a proof for the offence and the same alone cannot be made a ground to discard
the relief sought for. Reliance is placed on Rasool Muhammad vs. Asal
Muhammad (PLJ 1995 SC 477) & Muhammad Tasaweer vs. Hafiz
Zulkarnain (PLD 2009 SC 53). Taking into consideration all the facts
and circumstances
stated above, we are of
the view that the petitioner has made out a prima facie case
for grant of pre-arrest bail.
7. For what has been
discussed above, we convert this petition into appeal, allow it, set aside the
impugned order and confirm the ad interim pre-arrest bail granted to the
petitioner by this Court vide order dated 26.07.2023.
(K.Q.B.) Petition
allowed
