MUHAMMAD FAYYAZ vs THE STATE and another
This matter concerns a petition for post-arrest bail filed by the accused, Muhammad Fayyaz, who was charged under Section 489-F of the Pakistan Penal Code 1860 for allegedly issuing a dishonoured cheque. The core legal question was whether the accused was entitled to bail given the nature of the offence and the existing civil and criminal disputes between the parties. The Court observed that the parties had a history of business dealings, evidenced by a pending civil recovery suit and another registered FIR, suggesting the matter was essentially civil in nature. The Court held that since the punishment for the offence under Section 489-F does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, the accused was entitled to the grant of bail. The key principle laid down is that where an offence does not fall within the prohibitory clause of the bail statute, the grant of bail is a rule, and the court should not pre-judge the factual genuineness of the transaction, which remains a matter for trial.
- Does the offence of issuing a dishonoured cheque under Section 489-F of the Pakistan Penal Code 1860 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is the existence of a parallel civil suit between the parties a relevant factor in determining bail for an offence involving a dishonoured cheque?
- Section 489-F, Pakistan Penal Code 1860
- Section 156(3), Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
'MAZHAR ALAM KHAN MIANKHEL, J.---One Hisar Gul son of Gul Marjan moved an application dated 6-7-2009 to S.H.O. Police Station Khan Raziq Shaheed (Police Station Kabuli) for registration of the case under section 489-F, P.P.C. Against Muhammad Fayyaz son of Nisar Ahmad resident of Gul Abad, Peshawar. The said application was inquired into under section 156(3), Cr.P.C. And a case vide F.I.R. No, 647 dated 9-9-2009 under section 489-F, P.P.C. Was registered against the accused petitioner on the ground that the accused has dishonestly issued a cheque bearing No,225057 to him which was dishonoured from the bank.
'The accused petitioner after refusal of bail from the lower forums has filed the instant application for his release on bail.
2. After hearing the learned counsel for the parties, perusal of the record reveals that there are certain disputes between the two i.e, the complainant and the present accused petitioner because another F.I.R. No,480 dated 19-6-2009 was also registered against the present accused on the report of complainant Hisar Gul. During the course of submissions before this Court, certain cash payments by the accused to the complainant have also been admitted at the Bar. Besides the registration of said two criminal cases, a recovery Suit No,225/1 registered on 21-7-2008 to the tune of Rs,5,55,000 on the basis of agreement deed dated 13-7-2005 was also pending adjudication in the Court of Civil Judge, Peshawar between the parties. All these facts reflect that both the accused and the complainant have some common business for which such dealings through cheques were made. The presence of civil suit also confirms this very fact. The question whether the said cheque was dishonestly issued to the complainant is fact, genuineness or otherwise of which has to be proved at the time of trial. The punishment for the offence provided for does not come under the prohibitory clause of section 497, Cr.P. C. Which entitles the accused petitioner to the grant of bail.
3. So, in the light of observations made above, this bail petition (Criminal Miscellaneous No,1697 of 2009) is allowed and the petitioner shall be released on bail if he furnishes bail bond in the sum of Rs,200,000 (Rupees two lacs) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/ Magistrate on Duty.
'However, being tentative assessm ent in the case, this may not prejudice the mind of the trial Court.