AMNA MUSTANSAR vs THE STATE
This matter concerns a petition for pre-arrest bail filed by the petitioner, a woman, in connection with an FIR registered under Section 489-F of the Pakistan Penal Code 1860 for dishonouring a cheque. The petitioner contended that the cheque was obtained through coercive measures by police officials to release her husband in previous cases and that the complainant failed to produce the original cheque. The prosecution opposed the application, highlighting the specific role assigned to the petitioner and corroborative witness statements. The Lahore High Court observed that the complainant repeatedly failed to produce the original cheque during investigation and no recovery was required from the petitioner. The court noted that the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and recognized her statutory entitlement under the Protection of Women (Criminal Laws Amendment) Act 2006. Finding no exceptional circumstances to refuse relief, the High Court accepted the petition and confirmed the petitioner's ad-interim pre-arrest bail.
- Whether pre-arrest bail can be granted under Section 489-F PPC when no physical recovery is required from the accused?
- Whether an offence carrying a penalty outside the prohibitory clause of Section 497 Cr.P.C. entitles an accused to bail as a matter of right in the absence of exceptional circumstances?
- Whether the failure of the complainant to produce the original cheque during investigation supports the grant of pre-arrest bail?
- Section 489-F, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Protection of Women (Criminal Laws Amendment) Act 2006
ORDER
'HABIB ULLAH SHAKIR, J.---Though the instant petition, the petitioner seeks pre-arrest bail case F.I.R.
No,44/2009, dated 31-1-2009 under section 489-F, P.P.C. Registered at Police Station Model Town, Lahore.
2. Briefly stated facts as narrated in the F.I.R. Are that the petitioner issued a cheque Bearing No,098061 valuing Rs,8,00,000 in favour of complainant for re-payment towards some transaction pertaining to a car but latter on the said cheque was dishonoured.
3. Learned counsel for the petitioner argued that the petitioner has wrongly been entangled in this false and frivolous case with mala fide intention and ulterior motives of the complainant in connivance of the police. In fact the same complainant earlier got registered three F.I.Rs, bearing Nos.49/2008, 50/2008 and 51/2008 under section 489-F, P.P.C. At Police Station Model Town, Lahore against the husband of the petitioner namely Mustansar Yousaf Sukhera but later on, Rai Zameer D.S.P. CIA and Ejaz Dogar, D.S.P. CIA Model Town, Lahore adopted coercive measures asking the petitioner to issue open cheques from her account otherwise her husband would have to suffer and would be bumped off in a fake police encounter. The above mentioned cheques have been taken from the petitioner under coercion and the said cheques were never issued in the name of the complainant. The said D.S.Ps. Handed over two cheques to the complainant and in this regard, the complainant sworn an affidavit before the Illaqa Magistrate and expressed no objection if bails is granted to the petitioner's husband and the post arrest bail to Mustansar Yousaf Sukhera, husband of the petitioner was allowed. The petitioner is a household lady having attached baby in her lap and offence in view of the latest amendment in the light of Women Protection. Act is bailable. The complainant has failed to bring on record the original cheques.
4. The learned D.P.G. Assisted by learned counsel for the complainant opposed the bail application contending that the petitioner is nominated in the F.I.R. With specific role of issuing the cheque. The execution of the impugned cheque and being dishonoured by the concerned bank is not denied by the petitioner. A bank certificate in this regard has also been placed on the record. P.Ws. In their statement under section 161 Cr.P.C. Have also corroborated the version of the complainant. The petitioner has not joined the investigation of the case.
5. Heard. Record perused.
6. Admittedly, one cheque was issued on 15-1-2009 while the other on 16-1-2009 pertaining to M.C.B.
Shadman Colony Branch, Lahore. The complainant has failed to produce the copy of original cheque despite clear-cut direction by the I.O. Vide Zimni No,1 dated 18-2-2009. The statement of Mussaddaq Hussain, Manager H.B.L. Which was recorded on 5-3-2009 is not a corroborative piece of evidence to strengthen the case of the prosecution, however, the statement of Manager M.C.B.
Can be fruitful for the prosecution. On 14-4-2009 vide Zimni No,8, the complainant was again directed to produce the original cheque but she has failed to do so. The petitioner is a lady and as such her case is covered under the Women Protection Act VI of 2006, entitling her for pre-arrest bail. The question of mala fide usually is raised where the accused in the garb of bail before arrest wanted to avoid investigation and also wanted to avoid the recovery but in the present case there is no question of recovery of a cheque in dispute as the same was already with the prosecution.
Just for the purpose of sending accused to jail without any further investigation bail before arrest could not be refused when no further investigation is to be made. Bail before arrest could not be refused when no recovery of amount under the cheque is yet to be made. Question of dishonest issuance of cheque and its dishonest dishonouring could not be determined at bail stage. The same would be determined at the time of trial. Though the offence is not bailable yet this Court cannot ignore the fact that the offence does not fall within prohibitory clause of section 497, Cr.P.C.
And in the absence of exceptional circumstances bail before arrest could even be claimed as of right. The petitioner has also joined the investigation and such she is no more required for the purpose of investigation.
7. In this view of the matter, the instant petition is accepted and ad interim pre-arrest bail already granted to the petitioner by this Court vide order dated 26-5-2009, is hereby confirmed subject to her furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of learned trial Court.