MAZHAR IQBAL vs THE STATE
The petitioner sought pre-arrest bail in a criminal case registered under Section 489-F of the Pakistan Penal Code 1860 for issuing a dishonoured cheque. The core legal question was whether the petitioner was entitled to pre-arrest bail where the transaction arose from business dealings, the amount had allegedly been paid subsequently, and the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that the petitioner made out a case for further inquiry, noting that the offence was punishable with up to three years' rigorous imprisonment and fell outside the prohibitory clause, making bail the rule and refusal the exception. The pre-arrest bail was consequently confirmed subject to furnishing fresh bail bonds.
- Whether pre-arrest bail should be granted under Section 489-F of the Pakistan Penal Code 1860 when the offence does not fall within the prohibitory clause?
- Does the dishonouring of a cheque automatically warrant criminal prosecution without considering the purpose of its issuance and the element of dishonesty?
- Is bail considered a rule and refusal an exception in offences not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
ORDER
' SH. JAVAID SARFRAZ, J.---The petitioner, Mazhar Iqbal, seeks pre-arrest bail in case bearing F.I.R.
No.80 of 2005, dated 6-4-2005, under section 489,-F, P.P.C. Registered at Polcie Station Fateh Sher, District Sahiwal.
2. According to the contents of the F.I.R., the petitioner-accused is alleged to have issued a Cheque No.5037317, dated 30-12-2004 for Rs.50,000 drawn on PICIC Bank Limited in the name of Zafar Iqbal, the complainant. This cheque was dishonoured on presentation to the Bank. Accordingly, the case was registered against the present petitioner.
3. Learned counsel for the petitioner submits that there was a business dealing with the petitioner and the complainant and it was due to these dealings that this cheque of Rs.50,000 was handed over to the present complainant. It is further submitted that in due course of time this amount has already been paid to the complainant and the cheque was not to be presented to the Bank for encashment. Learned counsel for the petitioner further submits that in order to prove his bona fide the petitioner has already deposited Rs.50,000 with the police and concludes that there was no element of dishonesty.
4. The learned State counsel has vehemently opposed this petition.
5. According to the petitioner, there was a business relationship between him and the complainant, in which they used to purchase second hand cars and sell the same. In this regard a cheque of Rs.50,000 had been given to the present complainant but this amount has already been subsequently paid to him. In order to attract section 489-F, P.P.C., element of dishonesty should be shown and dishonouring of cheque does not mean that criminal case be registered forthwith. The purpose for which the cheque is issued should be taken into account before initiating criminal action. Major Anwar-ulHaq v. The State (PLD 2005 Lahore 607) is referred. The petitioner, under the circumstances, has made out a case of further inquiry requiring further prove into his guilt.
6. The offence so charged is punishable only with three years' R.I. And it does not fall within the prohibitory clause. As held by the Hon'ble Supreme Court of Pakistan in Tariq Bashir and 5 others v.
The State (PLD 1995 Supreme Court 34) that in such-like cases the grant of bail is a rule and refusal thereto is an exception. While relying on Ali Murtaza v. The State (2005 PCr.LJ 1773 [Lahore)), the pre-arrest bail already granted to the petitioner, vide order dated 14-11-2005, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Illaqa Magistrate.
7. The Illaqa Magistrate is directed to deposit/invest Rs.50,000 lying with the Investigating Officer of this case in any Government Profitable Scheme of National Savings Centre. The party found entitled to this amount shall also take the profit accrued thereupon.
8. With the above direction, this petition is allowed.
Cited by 3 cases
- TANVIR ELAHI vs THE STATE and others 2010 YLR 2110
- TANVEER ELAHI, DIRECTOR TAJ TEXTILE MILLS (LTD.) LAHORE vs STATE and another PLJ 2011 Cr.C. (Lahore) 847
- MUHAMMAD SALEEM Versus State 2009 YLR 2044