ABDUL HAFEEZ vs THE STATE
This matter arises from a petition seeking post-arrest bail in respect of an offence under section 489-F of the Pakistan Penal Code 1860, registered at Police Station Ghalla Mandi, Sahiwal. The core legal question pertained to whether the petitioner was entitled to post-arrest bail where the offence did not fall within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898 and the complainant failed to produce the disputed cheques. The Lahore High Court allowed the petition and admitted the petitioner to post-arrest bail. The court held that since the offense is punishable with imprisonment for up to three years and does not attract the prohibitory clause, the grant of bail is a rule while refusal is an exception, and an accused cannot be detained indefinitely as a measure of punishment in the absence of extraordinary circumstances.
- Whether post-arrest bail should be granted when an offense does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does the failure of a complainant to produce original disputed cheques affect the adjudication of a post-arrest bail petition?
- Can an accused be kept in continuous custody as a measure of punishment during trial?
- Section 489-F, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Abdul Hafeez son of Ghulam Nabi, petitioner, by filing this petition, seeks post- arrest bail in case F.I.R. No,216 of 2007, dated 8-5-2007, registered with Police Station Ghalla Mandi, Sahiwal for an offence under section 489-F, P.P. C.
2. The allegation against the petitioner and his co-accused, in the F.I.R. Registered at the instance of Prof. Muhammad Akram son of Ch. Ghulam Rasool, complainant, was that they owed the latter an amount of Rs,6,50,000 and allegedly issued two postdated cheques bearing No,T03421277, dated 27-4-2006 for Rs,3,50,000 and 3421278, dated 9-5-2006 for Rs,30,000 respectively drawn on Habib Bank Ghalla Mandi Branch, Sahiwal which on presentation had been dishonoured.
3. The petitioner was arrested on 14-5-2007 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Sessions judge, Sahiwal who turned down his application vide order, dated 3-7-2007. Hence this petition.
4. I have heard the learned counsel for the petitioner, the learned Law Officer, as also the learned counsel for the complainant and have perused the record brought by Irshad-ul-Haq A.S.-I., Police Station Ghalla Mandi, Sahiwal.
5. The main thrust of the argument of the learned counsel for the petitioner was that he had never issued the cheques in question whereas the complainant insisted that same had been issued and were dishonoured at the time of presentation, and that the same are on the file of suit for recovery of money, which is pending in the civil Court. The learned counsel for the petitioner has also stressed that on 26-6-2007 the complainant had been summoned for production of original cheques by the learned Magistrate but neither he himself appeared there nor did he produce the disputed cheques. On Court's query the complainant failed to produce the said cheques before this Court to show his bona fide. Admittedly, the petitioner is accused of an offence under section 489-F, P.P.C., which is punishable with imprisonment of three years and which does not attract the mischief of prohibitory clause of section 497(1), Cr.P.C. Bail in such like cases is a rule and refusal thereof an exception. Although the learned counsel A for the complainant as also the learned Law Officer have opposed the grant of bail to the petitioner, however, they have not been able to point out any special feature of the case which may bring his case in any of the exception. The petitioner is in custody for the last almost eight months and he cannot be retained as such indefinitely as a measure of punishment.
6. Resultantly this petition is allowed and the petitioner is admitted to post-arrested bail in the sum of Rs,1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.