Issuance of cheque is a matter which requires further probe & inquiry, that can only be done by the Trial Court after recourse to evidence

 PLJ 2025 Cr.C. (Note) 42

[Lahore High Court, Multan Bench]

Present: Sardar Muhammad Sarfraz Dogar, J.

SHAHID IQBAL--Petitioner

versus

STATE etc.--Respondents

Crl. Misc. No. 10647-B of 2024, decided on 13.1.2025.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Order XXXVII of Code of Civil Procedure, 1908--POST ARREST BAIL--Cheque of an amount of Rs. 45,10,000/--A cheques amounting to Rs. 45,10,000/- was issued by the petitioner, which as dishonored on its presentation--There was an agreement to sell between the petitioner and complainant and for the payment of amount, the petitioner issued the disputed cheque in favour of the complainant--Issuance of said cheque is a matter which requires further probe & inquiry, that can only be done by the Trial Court after recourse to evidence--Civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908--The petitioner is behind the bars since the date of his arrest and his person is no more required to the investigation agency--The instant bail petition is allowed and the petitioner is admitted to post-arrest bail.   

                                                        [Para 2, 4, 6 & 8] A, B, C, D, F & I

2012 SCMR 1137; 2016 SCMR 18; PLD 1995 SC 34 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Post arrest bail--The offence under Section 489-F, PPC does not fall within prohibitory clause of Section 497(1), Cr.P.C and the grant of bail in such like cases is a rule and refusal thereof is an exception.            [Para 5] E

PLD 1995 SC 34; 2011 SCMR 1708; 2023 SCMR 2122;
2014 SCMR 1032; PLD 2017 SC 733 ref.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 489-F--Order XXXVII of Code of Civil Procedure, 1908--The registration of criminal case for offence punishable under section 489-F of Pakistan Penal Code, 1860, is not to be used as a tool for the recovery of amount.   [Para 6] G

2017 YLR Note 47 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Post arrest bail--Involvement of a huge amount does not enlarge the punitive scope of S. 489-F, PPC and is not ground for refusal of bail.                                                 [Para 7] H

2020 SCMR 1268 ref.

Kh. Qaiser Butt, Advocate for Petitioner.

Mr. Hassan Mehmood Khan Tareen, DPG for State.

Mr. Ahmad Raza, Advocate for Complainant.

Date of hearing: 13.1.2025.

Order

Through this petition, the petitioner seeks post-arrest bail in case FIR No. 935/2024, dated 16.10.2024, registered for the offence under Section 489-F, PPC with the Police Station City Kabirwala, District Khanewal.

2.       As per crime report, the precise allegation against the petitioner is that he dishonestly issued cheque of an amount of Rs. 45,10,000/- to the complainant, which was presented in the bank for encashment but the same was dishonoured.

3.       Heard. Record perused.

4.       As per FIR, a cheques amounting to Rs. 45,10,000/-was issued by the petitioner, which as dishonored on its presentation in the concerned Bank. The cheques was issued on 27.9.2023, whereas, the same was reported to the police on 16.10.2024. It is narrated by the complainant in the crime report that there was an agreement to sell between the petitioner and complainant and for the payment of amount, the petitioner issued the disputed cheque in favour of the complainant. Therefore, keeping in view of these particular aspects of the matter, the issuance of disputed cheque, as alleged by the complainant in his First Information Report, and dishonest intention by the petitioner in issuance of said cheque is a matter which requires further probe and inquiry, that can only be done by the learned trial Court after recourse to evidence, Wisdom is drawn from the case titled “Ehsan Ullah vs. The State” (2012 SCMR 1137) and Zaigham Ashraf v. The State and another (2016 SCMR 18).

5.       On query, learned Law officer submits that there is no conviction in credit of petitioner in the cases of similar nature. 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 and 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 its refusal an exception. No exceptional circumstances could be pointed out by the other side. The offence under Section 489-F, PPC does not fall within prohibitory clause of Section 497(1), Cr.P.C. and the grant of bail in such like cases is a rule and refusal thereof is an exception, Reliance be made upon “Riaz Jafar Natiq v. Muhammad Nadeem Dar and others” (2011 SCMR 1708) and “Noman Khaliq v. The State and another” (2023 SCMR 2122). Similar view has been adopted by the Hon’ble Supreme Court of Pakistan in another case titled “Muhammad Sarfraz v. The State and others” (2014 SCMR 1032). Further wisdom can be extracted from the cases titled “Muhammad Tanveer vs. State” (PLD 2017 Supreme Court 733) and “Abdul Saboor vs. The State through A.G. Khyber Pakhtunkhwa and another” (2022 SCMR 592).

6.       In Abdul Saboor’s case mentioned supra, the prestigious Supreme Court of Pakistan has held that for recovery of amount civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908) (“CPC”). Moreover, admittedly the cheque is a negotiable instrument falling within the domain of Order XXXVII of CPC and the Criminal Courts cannot be used as a tool for recovery in such like cases. The registration of criminal case for offence punishable under Section 489-F of Pakistan Penal Code, 1860, 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 on Qaiser Ali Khan v. The State and another (2017 YLR Note 47).

7.       Furthermore, 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 “Jehanzeb Khan vs. The State through A.G. Khyber Pakhtunkhwa and others” (2020 SCMR 1268) 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. As such, no useful purpose would be served by keeping the petitioner behind the bars for an indefinite period.

9.       In view of above discussion, 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/- with two sureties each in the like amount to the satisfaction of learned trial Court. It is pertinent to mention here that the observations made herein above are tentative in nature, which shall have no bearing effect on the merits of the case and the trial Court would, thus, be free to decide the case on the basis of evidence adduced during the trial.

(M.A.B.)         Bail allowed