PLJ 2026 Cr.C. (Note) 166
[Sindh High Court, Hyderabad Circuit]
Present: Muhammad Hasan (Akber), J.
SHEHRYAR SULTAN--Applicant
versus
STATE etc.--Respondents
Crl. B. Appln. No. S-793 of 2025, decided on 23.10.2025.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, 1860 (XLV of 1860), S. 489-F--Bail grand of--Allegation of—Dishonoured of cheque--It has been held that foundational elements to constitute an offence under Section 489-F are issuance of a cheque, with dishonest intent, and issuance of a cheque towards repayment of a loan or fulfilment of an obligation--The spirit of Section 489-F requires that until ‘obligation’ is established, it would be difficult to attribute ‘dishonesty’, and without which, basic ingredients to impose a Charge under provision would not be possible--The factual controversy as to whether applicant acted with fraudulent intent from inception or whether dispute has evolved into a civil liability is a matter which can only be determined after recording of evidence at trial--Where a transaction gives rise to both civil and criminal liability, element of fraudulent intention must be determined on basis of evidence, and until such determination, matter may fall within scope of further inquiry--In present case, on a tentative assessment, neither ingredient of “obligation” nor that of “dishonesty could be found, making it a fit case for Further Inquiry as envisaged under Section 497 Cr.PC--The cheque is already in possession of complainant, and no recovery is to be effected from applicant--Therefore, his further incarceration at this stage would serve no useful purpose for prosecution--Lastly, maximum punishment under provision is three years, which does not fall under prohibitory clause of Section 497 Cr.PC. and in such cases, ball is a matter of right--Bail allowed. [Para 5 ] A & B
Mr. Muhammad Ali Kolachi, Advocate for Applicant.
Mr. Irfan Ali Talpur, Deputy Prosecutor General for Respondents.
Mr. Ali Asadullah Soomro, Advocate for Complainant.
Date of hearing: 23.10.2025.
Order
The applicant seeks post-arrest bail in a case bearing crime No. 05/2025, for offence under Section 489-F, PPC of PS Bandhi, District Shaheed Benazirabad. Earlier the bail plea of applicant/accused was declined firstly by the learned Judicial Magistrate-I, Daur vide order dated 30.05.2025 and onward by the learned Additional Sessions Judge-III, Shaheed Benazirabad vide order dated 05.06.2025.
2. Succinctly stated, the prosecution case is that the complainant Imam Ali sold out twenty (20) buffaloes to the applicant in the sum of Rupees six million, out of which one million was paid as an advance, while a cheque Bearing No. A84444151 dated 25.09.2024 for remaining five million was issued by applicant, which on presentation, was dishonored. Upon persistent demands, the applicant failed to return the amount.
3. Learned counsel for applicant/accused reiterated that the applicant is innocent and has been falsely roped in a criminal case; that the FIR is delayed more than four and half month and there is no plausible explanation in this regard; that no record is available to show any documentary evidence produced by the complainant about the alleged sell of buffaloes. It is further submitted that the case does not fall within the prohibitory clause of Section 497, Cr.P.C. He placed reliance on the case laws reported as 2024 YLR 1144, 2023 SCMR 2122, 2025 P.Cr.L.J 98 and 2024 SCMR 1596.
4. Conversely, learned Deputy Prosecutor General duly assisted by the learned Advocate for complainant vehemently opposes the bail application, submitting that the dishonoured cheque was issued by the applicant and the same fulfills the ingredients of Section 489-F, PPC. He argued that applicant/accused purchased buffaloes from Complainant in presence of witnesses and in lieu of such transaction, the applicant issued a cheque from his account which on presentation has been dishonored. As such, prima facie ingredients of the offence under Section 489-F, PPC are fully satisfied. Learned counsel for complainant placed his reliance on case law reported as 2021 P.Cr.L.J 886.
5. Heard learned counsel for the applicant /accused, learned counsel for complainant and learned D.P.G and have perused the available record with their assistance. The complainant claims that the subject cheque was issued by the applicant as twenty (20) buffaloes were sold out to the applicant; however, such a fact has been denied by the applicant. Yet, there is no material available on record regarding such transaction in a written form. The basic principle in such cases is that mere issuance of cheques does not constitute an offence unless it is established that the same were issued for repayment of a loan or fulfilment of an obligation, and with dishonest intention. The complainant side has not placed on record even a single document to establish the existence of any “obligation”, as mandatorily required as a precondition under Section 489-F, PPC. It appears that the applicant/accused is behind bars since his arrest and the investigation is complete, and no useful purpose would be served by arresting the applicant or keeping him behind bars, especially when the entire evidence is documentary in nature, which is already in custody of the prosecution. The principles settled by the Supreme Court in ‘Mian Allah Ditta v. The State and others’ (2013 SCMR 51) are that every transaction where a cheque is dishonoured would not constitute an offence in the absence of dishonesty. In ‘Ali Anwar Paracha v. The State’ (2024 SCMR 1596), it has been held that the foundational elements to constitute an offence under Section 489-F are the issuance of a cheque, with dishonest intent, and the issuance of a cheque towards repayment of a loan or fulfilment of an obligation. The spirit of Section 489-F requires that until ‘obligation’ is established, it would be difficult to attribute ‘dishonesty’, and without which, the basic ingredients to impose a Charge under the provision would not be possible. The factual controversy as to whether the applicant acted with fraudulent intent from the inception or whether the dispute has evolved into a civil liability is a matter which can only be determined after the recording of evidence at trial. Where a transaction gives rise to both civil and criminal liability, the element of fraudulent intention must be determined on the basis of evidence, and until such determination, the matter may fall within the scope of further inquiry. In the present case, on a tentative assessment, neither the ingredient of “obligation” nor that of “dishonesty could be found, making it a fit case for Further Inquiry as envisaged under Section 497 Cr.PC. The cheque is already in possession of the complainant, and no recovery is to be effected from the applicant. Therefore, his further incarceration at this stage would serve no useful purpose for the prosecution. Lastly, maximum punishment under the provision is three years, which does not fall under the prohibitory clause of Section 497 Cr.PC. and in such cases, bail is a matter of right, as held in ‘Tariq Bashir and 5 others vs. The State (PLD 1995 SC 34) and ‘Muhammad Tanveer vs. The State and another’ (PLD 2017 SC 733).
6. Upshot of the above discussion is that, without touching the merits of the case on a tentative assessment and following the ratio settled in the cases discussed above, this application is therefore allowed on the terms as announced in the short order dated 23.10.2025. However, the applicant shall fully cooperate with the trial Court, no unnecessary adjournment shall be granted; and in case of misuse of concession of bail, the trial Court may initiate proceedings for cancellation of bail in accordance with law without making reference to this Court. The observations made hereinabove are tentative in nature which shall not influence the learned trial Court while independently adjudicating the case on its own merits. For what has been discussed above, the instant bail application was allowed, and the applicant was admitted to bail through the short Order dated 23.10.2025, and these are the reasons for the same.
(A.A.K.) Bail allowed
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