Mirza MUHAMMAD AKRAM vs THE STATE and 2 others
This matter comes before the Lahore High Court through a petition seeking post-arrest bail in respect of an FIR registered for an offence involving a dishonoured cheque. The core legal question concerns whether the petitioner, alleged to have issued a cheque that was subsequently dishonoured, is entitled to post-arrest bail when the transaction arose from an agreement and the petitioner contends the matter is of a civil nature. The court held that since the petitioner acted merely as a guarantor, the offence under Section 489-F of the Pakistan Penal Code was not made out from the facts, the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, further detention would amount to pre-trial punishment, and investigation was complete. Consequently, the petition was allowed and the petitioner admitted to bail. The key principle laid down is that where an offence does not fall within the prohibitory clause and continuous detention serves no useful purpose, pre-arrest or post-arrest liberty should not be withheld as a measure of punishment.
- Whether post-arrest bail should be granted when an offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is a guarantor entitled to bail when a dispute regarding a dishonoured cheque arises out of a commercial or civil agreement?
- Does keeping an accused behind bars for an indefinite period when further custody is not required amount to punishment before conviction?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' HASSAN RAZA PASHA, J.-- Through this petition the petitioner seeks post-arrest bail in case F. I. R.
No.68 dated 10-2-2010 for offence under section 489-34, P.P.C. Registered with Police Station Shalimar Islamabad.
2. Allegation against the petitioner is that he issued a cheque of Rs.1,00,00,000 which was dishonoured at the time of presentation before the concerned bank.
3. Learned counsel for the petitioner submits that the cheque was not issued against any liability, in fact the cheque was issued as a guarantee and the petitioner had performed his part of agreement, hence, no offence under section 489-F P.P.C. Is made out against the petitioner; that the matter is of civil nature; that the petitioner is behind the bars since his arrest and is not required by the police for further investigation; that the offence does not fall within the prohibitory clause of section 497, Cr.P.C.
4. Learned Standing Counsel assisted by learned counsel for the complainant has vehemently opposed the grant of bail to the petitioner on the ground that the petitioner was named in the F.I.R.
And specific role of issuing cheque in favour of complainant has been assigned to him which on presentation to bank was dishonoured. During police investigation accused was found gully involved in crime alleged against him.
' Arguments heard. Record perused.
6. Admittedly the cheque was issued on 1-12-2007 and an agreement between the parties was executed. The principal accused is behind the bars. The liability was against the co-accused and the present petitioner is just a guarantor. The learned Standing Counsel frankly conceded that section 489-F, P.P.C. Is not made from the facts and circumstances of the case. The petitioner is behind the bars since his arrest. Nothing has been recovered from the petitioner and his custody is no more required by the Police. Offence under section 489-F, P.P.C. Did not fall within the prohibitory clause of section 497, Cr.P.C.. Keeping the petitioner behind the bars for an indefinite period would not serve or advance prosecution's case, rather same would amount to punishment before conviction which is not permissible under criminal jurisprudence.
7. For what has been discussed above, this petition is allowed and the petitioner is admitted to bail in the sum of Rs.5,00,000 with one surety in the like amount to the satisfaction of trial Court.
Cited by 1 case
- Ghulam Nabi Shahbaz vs The State And Another (K.L.R. 2010 Criminal Cases 212)