TALIB HUSSAIN vs STATE
The petitioner sought pre-arrest bail in a criminal case registered under Section 489-F of the Pakistan Penal Code 1860 regarding the alleged issuance of a dishonoured cheque. The core legal question revolved around whether pre-arrest bail should be confirmed where the challan has already been submitted, no further investigation or recovery is required, and the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that since the disputed cheque was already in the possession of the complainant, no recovery was required, the object of Section 489-F is not the recovery of money, the elements of dishonest issuance and dishonour require evidence during trial, and the offence does not fall within the prohibitory clause. Consequently, the court confirmed the pre-arrest bail. The key principle laid down is that in offences not falling within the prohibitory clause where no further recovery or investigation is needed, pre-arrest bail can be claimed in the absence of exceptional circumstances.
- Whether pre-arrest bail can be granted under Section 489-F of the Pakistan Penal Code 1860 when the challan has already been submitted and no recovery is required?
- Does the offence under Section 489-F of the Pakistan Penal Code 1860 fall within the prohibitory clause?
- Can the question of dishonest issuance and dishonest dishonour of a cheque be determined at the bail stage without recording evidence?
- Section 489-F, Pakistan Penal Code 1860
ORDER
The petitioner seeks pre-arrest bail in case FIR No. 170, registered with Police Station Saddar, Shujabad, District Multan on 20.6.2006 for an offence under Section 489-F, PPC.
2. As per contents of the FIR, the petitioner allegedly obtained loan of Rs. 1,20,000/- from the complainant on 30.2.2004 and in token whereof issued the cheque in dispute payable at United Bank Matotli Branch. According to the contents the cheque was issued on 30.2.2004 yet it was post-dated as 30.4.2004 meaning thereby the same was payable on or after 30.4.2004.
3. It is submitted by the learned counsel for the petitioner that the petitioner issued a blank cheque in dispute which was later on filled in by the complainant and the same was, in fact, given as security to Abdul Rahim PW shown in the FIR after settlement of some accounts and when the petitioner filed suit for recovery of amount against said Abdul Rahim he in connivance with the complainant filled in the cheque in dispute and got the present case registered on 20.6.2006 otherwise, the petitioner has got no connection with the complainant and, thus, there was neither any question of dishonest issuance of cheque nor its dishonest dishonor within the meaning of Section 489-F, PPC.
4. On the other hand, learned counsel for the complainant has vehemently opposed this application by arguing that in terms of Section 489F, PPC once execution/issuance of cheque is admitted Section 489-F, PPC automatically attracted irrespective of the fact whether the same was issued with dishonest intention and the same got dishonored dishonestly. Further submits that the complainant has nothing to do with any dispute in between Abdul Rahim and the petitioner except that a loan was given to the petitioner in his presence who has now been cited as PW in the FIR.
Lastly, argued that in the absence of any malafide on the part of the complainant or the prosecution the petitioner cannot claim pre-arrest bail as of right. Reliance has been placed on the case of Sikandar u. The State (2002 M LD 113). It is also argued that even there is no remote reference about the cheque in dispute in the plaint filed by the petitioner against said Rahim which also prove the case of the complainant that the cheque was issued dishonestly and was also got dishonored dishonestly.
5. I have heard learned counsel for the parties and have also gone through the record. So far as the question of malafide is concerned, there is no cavil to the proposition addressed by learned counsel for the complainant but the fact remains that after the incorporation of Section 489-F, PPC the situation with regard to bail before arrest in case involving Section 489-F, PPC appears to have changed. Usually, the questkon of mala fide is raised Y.' where the accused in the garb of bail before arrest wants to avoid investigation and also want to avoid recovery but in the instant case there is no question of recovery of cheque in dispute as the same is already with the complainant, therefore, just for the purpose of sending the accused to jail without any further investigation the bail before arrest cannot be refused when no further investigation is to be made and the challan already stands submitted with the trial Court. Further, it would not be out of place to mention here that the object of Section 489-F, PPC is not to effect recovery of amount under the cheque and for that matter the complainant has always to approach the Court of competent jurisdiction. The question of dishonest issuance of cheque and dishonest dishonor can also not be determined as the same require evidence which is only possible during trial. And, lastly although the offence under Section 489-F, PPC is non-bailable yet this Court cannot ignore the fact that the offence also does not fall within the ambit of prohibitory clause and in the absence of exceptional circumstance the bail before arrest can even be claimed as of right in the light of the law declared by the Hon'ble Supreme Court of Pakistan in Tariq Bashir u. The State (PLD 1995 SC 34). Resultantly, this bail application is allowed and the ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 1,50,000/- (Rupees one lac & fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court within ten days.