2023 SCLR 71

Other citations:

2023 SCP 249 (https://www.supremecourt.gov.pk/downloads_judgements/crl.p._714_2023.pdf)

2023 SCMR 2122 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

Noman Khaliq—Petitioner

versus

The State and another—Respondents

Criminal Petition No. 714 of 2023, decided on 11^th August, 2023.

(On appeal against the order dated 04.05.2023 passed by the Islamabad High Court, Islamabad in Crl. Misc. No. 531-B/2023)

HEADNOTES

(a)   Criminal Procedure Code (V of 1898) —

— S. 497 — Penal Code (XLV of 1860), S. 489-F — Dishonestly issuing a cheque — Bail, grant of — Scope — Accused sought post-arrest bail in an FIR — As per the contents of the crime report, the accused and the complainant had business relations — The complainant gave a certain amount to the petitioner for doing business on the pretext that whatever profit he will earn, he will share half of the same with the complainant — Allegedly, the accused earned a profit and gave three cheques to the complainant for the amount but they were dishonoured on presentation to the Bank — However, stance of the accused was that the cheques were not issued towards repayment of loan or fulfillment of an obligation and the same were issued in respect of the joint business — Admittedly, the accused and the complainant were in business relations — In this view of the matter, 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 Trial Court after recording of evidence — The accused was behind the bars for the last about five months — Maximum punishment provided under the statute for the offence under Section 489-F, PPC was three years and the same did not fall within the prohibitory clause of Section 497, CrPC — All the material was in documentary shape; the investigation was complete and the accused was no more required for further investigation — Case of the accused squarely fell within the ambit of Section 497(2), CrPC entitling for further inquiry into his guilt — Accused was admitted to bail. [Para. No. 6 & 7]

(b)   Penal Code (XLV of 1860) —

— S. 489-F — Dishonestly issuing a cheque — Scope — Section 489-F of PPC is not a provision which is intended by the Legislature to be used for recovery of an alleged amount, rather for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of CPC. [Para. No. 6]

Abdul Saboor v. The State (2022 SCMR 592) referred.

(c)   Bail —

— Scope — Grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception. [Para. No. 6]

Tariq Bashir v. The State (PLD 1995 SC 34) referred.

(d)   Bail —

— Liberty of a person is a precious right which cannot be taken away without exceptional foundations. [Para. No. 6]

(e)   Criminal trial —

Asad Mehmood Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the petitioners.

Complainant, in person.

Rifaqat Ali Khokhar, Advocate Supreme Court as state counsel ICT and Muhammad Ishaq, Inspector for the State.

Date of hearing: 11^th August, 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 04.05.2023 passed by the learned Islamabad High Court, Islamabad, with a prayer to grant post-arrest bail in case registered vide FIR No. 372/15 dated 08.10.2015 under Section 489-F PPC at Police Station Industrial Area, Islamabad, in the interest of safe administration of criminal justice.

2.           Briefly stated the allegation against the petitioner is that he had business relations with the complainant. The complainant gave an amount of Rs.29,00,000/- to the petitioner for doing business on the pretext that whatever profit he will earn, he will share half of the same with the complainant. Allegedly, the petitioner earned a profit of Rs.800,000/- and considering the half of the same to be of the complainant, the petitioner owed an amount of Rs.33,00,000/- to the complainant. The petitioner gave three cheques to the complainant for the said amount but they were dishonoured on presentation to the Bank.

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 even if the claim of the complainant is believed, even then at the most he can file a civil suit for recovery of the amount. Contends that the petitioner is behind the bars for the last about five months and his further incarceration would not serve any purpose. 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 complainant in person 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 08 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 petitioner and the complainant had business relations. The complainant gave an amount of Rs.29,00,000/- to the petitioner for doing business on the pretext that whatever profit he will earn, he will share half of the same with the complainant. Allegedly, the petitioner earned a profit of Rs.800,000/- and considering the half of the same to be of the complainant, the petitioner owed an amount of Rs.33,00,000/- to the complainant. The petitioner gave three cheques to the complainant for the said amount but they were dishonoured on presentation to the Bank. However, it is the stance of the petitioner that the cheques were not issued towards repayment of loan or fulfillment of an obligation and the same were issued in respect of the joint business. Admittedly, the petitioner and the complainant were in business relations. This Court in the case of Abdul Saboor Vs. The State (2022 SCMR 592) has categorically held that Section 489-F of PPC is not a provision which is intended by the Legislature to be used for recovery of an alleged amount, rather for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of CPC. In this view of the matter, 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 petitioner is behind the bars for the last about five months. 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. Reliance is placed on Tariq Bashir Vs. The State (PLD 1995 SC 34). 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 case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt.

7.           For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of learned Trial Court.

Bail granted