ZAFAR IQBAL vs MUHAMMAD ANWAR and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition is directed against the judgment, dated 15- 4-2009 passed by Islamabad High Court, Islamabad whereby Criminal Miscellaneous No,81/BC of 2009 filed by the respondent No,1 was allowed and the post-arrest bail allowed to the petitioner vide order, dated 30-9-2008 by the High Court was recalled.

2. Precisely stating facts of the case are that an F.I.R. No,124 dated 14-4-2006 was registered with Police Station Margallah, Islamabad under section 489-F, P.P.C., against the petitioner Zafar Iqbal on the complaint of the respondent No,1 Muhammad Anwar, to the effect that the petitioner issued a cheque of Rs.4,00,000 (four lacs), which was dishonoured from the bank on presentation. On registration of the case, the petitioner applied for post-arrest bail before the Civil Judge- cumJudicial Magistrate, Islamabad which was dismissed vide order, dated 17-6-2006. Feeling aggrieved, the petitioner approached the learned Sessions Judge, ,Islamabad, with the same request, which met the same fate. The petitioner challenged the said order before the Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Criminal Miscellaneous No,1072/B of 2006, which was accepted and petitioner was conditionally allowed interim bail on 18-10-2006, which later on was confirmed vide order, dated 29-11-2006 in terms of undertaking by the petitioner that the amount due to the complainant/respondent No,1 i,e, Rs.18,00,000 (eighteen lacs) shall be paid in equal instalments of Rs.9,00,000 each on 4-1-2007 and 4-2-2007. Afterwards, the petitioner failed to pay the outstanding amount, as result whereof the respondent No,1 moved an application for cancellation of bail before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was disposed of in view of the agreement, dated 11-2-2008 whereby the petitioner undertook to pay an amount of Rs.7,00,000 (seven lacs) through pay order, dated 13-2-2008 and the remaining amount of Rs.11,00,000 (eleven lacs) within next three months. The to the petitioner ultimately was cancelled vide order, dated 30-7-2008. Thereafter, the petitioner again applied for grant of bail after arrest before the Islamabad High Court by way of filing Criminal Miscellaneous No,312/B of 2008, which was allowed vide order dated 30-9-2008 and the petitioner was admitted to bail, for the reason that he has paid Rs.7,00,000 (seven lacs) in cash to the respondent No,1 (acknowledged by the respondent No,1) and gave the undertaking that the balance of Rs.11,00,000 (eleven lacs) shall be paid within three months.

3. It may be noted that the petitioner again failed to comply with his undertaking, resultantly the respondent No,1 moved Criminal Miscellaneous No,81/BC of 2009 for cancellation of bail, already granted to the petitioner. The learned High Court, on the request of the petitioner adjourned the matter twice to settle the matter amicably, with the direction that no further adjournment would be allowed. However, on third date of hearing, no one appeared on behalf of petitioner. Resultantly, the petition was allowed by means of impugned order dated 15-4-2009 on merits and on account of petitioner's failure to attend the Court, whereby the post-arrest bail allowed to him vide order dated 30-9-2008 was recalled. Hence this petition.

4. Learned counsel contended that the petitioner had already spent about 6 months in jail, against the maximum sentence of 3 years under section 489-F, P.P.C., therefore, being allegedly involved, his case falls within the prohibitory clause of section 497, Cr.P.C. As such he is entitled for release on bail because in such-like cases grant of bail is rule whereas denial is exception. He further stated that the Courts have to decide the case following the principle of law, without considering the amount involved in the case, like falling within the mischief of section 489-F, P.P.C.

5. On the other hand, learned counsel for the complainant argued that the petitioner despite furnishing undertaking, failed to comply with the same, therefore, the High Court had rightly recalled the concession of to him. He further explained that the petitioner had entrusted huge amount to him for the purpose of running business but he had deceived him by misappropriating the amount in clandestine manner as evident from the facts of the case. The complainant explained to him that he had given the amount to the petitioner for the purpose of investment and after sometime he had also given him profit but later on stopped the payment, therefore, he filed a complaint against him because a cheque issued by him was dishonoured. Further, the undertaking to return the money was also violated therefore, he had filed a suit for recovery of his money and had also lodged a criminal case against him as well.

6. Learned Additional Prosecutor-General supported the impugned order of the High Court.

7. We have heard the learned counsel for the parties and have also examined the record, so made available, carefully. A perusal whereof suggests to draw inference that there was no business deal between the parties and the amount of Rs.4,00,000 was initially given by the complainant to the petitioner for making investment and given him profit of the same but at the time when he failed to make the payment of profit for one or the other reasons, he got registered a case against the petitioner. As far as section 489-F, P.P.C. Is concerned it prescribes sentence of 3 years. The Courts, in such-like cases where offence falls within the non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in the exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. Reference may be made to the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 wherein it has been mentioned that "section 497, Cr.P.C. Divided non-bailable offences into two categories i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years and (ii) offences punishable with imprisonment for less than ten years, the principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal and exception. So the bail will be declined only in extraordinary and exceptional cases, for example:---

(a) where there is likelihood of abscondance of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict."

' This principle has also been reiterated in the case of Subhan Khan v. The State 2002 SCM R 1797.

8. It is also one of the important aspects of the case that an accused, charged for a criminal offence, ordinarily cannot be kept into custody for the purpose of punishment. As in the instant case the petitioner had already remained in jail for a period of six months and if the prosecution failed to establish guilt against him, his longer detention would cause him loss and his liberty would be curtailed for a considerable period without any legal justification.

9. We may further observe that under the non-prohibitory clause as well, an accused cannot claim bail as a matter of right but such facility can be extended to him as a matter of concession, simultaneously, keeping in mind the fact that the petitioner had already returned a huge portion of amount received by him from the complainant. Since the civil litigation had already commenced at the behest of the respondent who had filed a suit for recovery of the amount against the petitioner, we are inclined to grant him bail under the facts and circumstances of the case narrated hereinabove. These are the reasons of our short order, dated 26-6-2009 which is reproduced as under:- "For the reasons to be recorded later, petitioner is ordered to be released on bail subject to furnishing surety bond in the sum of Rs.1,00,000 and P.R. In the like amount to the satisfaction of the learned trial Court. Learned trial Court is directed to complete the trial of the case within four weeks.

Abdul Sattar S.-I./Investigating Officer, present in Court, is directed to produced all the witnesses before the trial Court at his own responsibility. No adjournment shall be granted unless otherwise unavoidable and the compliance report shall be sent to the Registrar for our perusal in Chambers.

Petition is converted into appeal and allowed in the above terms."