SHAHID KHAN vs THE STATE
This petition for post-arrest bail arises from an F.I.R. registered under section 489-F of the Pakistan Penal Code 1860, concerning the alleged dishonour of a cheque issued for the purchase of fertilizer. The petitioner, who had been denied bail by the lower courts, contended that the offence does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, as the maximum punishment is three years. The petitioner further argued that the cheque was stolen and signatures were forged, and that he was no longer required for investigation. The State opposed the bail, citing the petitioner's specific nomination and potential for abscondence. The Court held that since the offence under section 489-F does not fall within the prohibitory clause of section 497, and the investigation was complete, the petitioner was entitled to bail. The Court reaffirmed the principle that in cases falling outside the prohibitory clause, the grant of bail is the rule and refusal is the exception, as incarceration should not serve as a pre-trial punishment.
- Does the offence 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 grant of bail the rule and refusal the exception in cases where the offence does not fall within the prohibitory clause?
- Can a court deny bail solely on the basis of high principles of ethics or morality when the offence is outside the prohibitory clause?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' HAFIZ ABDUL REHMAN ANSARI, J.---Petitioner Shahid Khan son of Munir Khan through this petition under section 497, Cr.P.C., seeks bail after arrest in case F.I.R. No.361 dated 13-5-2009, registered at Police Station Mumtazabad, Multan, for an offence under section 489-F, P.P.C. In the first instance, the petitioner applied for post-arrest bail before the learned Illaqa/Judicial Magistrate, who vide order dated 10-6-2009 declined the said relief. Subsequently he applied for post-arrest bail before the learned Sessions Judge, Multan, which was also declined by the learned Additional Sessions Judge, Multan vide his order dated 26-6-2009, hence this petition.
2. The story unfolded in the F.I.R. Is that the petitioner purchased fertilizer from Agriplex Pakistan, Multan for Rs.15,50,000 and executed a cheque for payment of the said amount from his account to be drawn on the National Bank of Pakistan, which on presentation to the concerned Branch was dishonoured.
3. The learned counsel for the petitioner submits that the offence under section 489-F, P.P.C. Does not fall within the prohibitory clause of section 497, Cr.P.C.; that the maximum punishment for the said offence is three years imprisonment; that the petitioner was employed as Sales Officer in the Agriplex being controlled by complainant Waseem Butt, Regional Head while one Tahir was its Area Manager; that the petitioner was drawing salary of Rs.9,000/- per month, and he was removed from service by the complainant Company in December, 2007 and a suit in this regard for rendition of accounts is also pending in respect of two cheques executed by Muhammad Tahir. The petitioner denies his signatures on the cheque which was dishonoured. The leanred counsel submits that cheque book of the petitioner was stolen and his bogus signatures were embossed on the cheque. Further submits that the Company never gave him any fertilizer of such a huge amount; the cheque in dispute was stolen away by Muhammad Tahir and on the basis of the said cheque the instant F.I.R. Was lodged falsely; that the body of the petitioner is not required for further inquiry; and that the petitioner is behind the bars since 2-6-2009.
4. On the other hand, the learned DDPP submitted that the petitioner is specifically nominated in the F.I.R. With specific role; that the cheque issued by the petitioner was dishonoured on presentation to the concerned Bank; the petitioner is resident of District Bahawalnagar so there is every likelihood of his abscondence; that sufficient incriminating material is available on the record against the petitioner to connect him with the offence.
5. I have heard the learned counsel for the parties and perused the record. Admittedly the offence under section 489-F, P.P.C. Does not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner is behind the bars for near about more than three months. He cannot be kept behind the bars as a punishment in such like a case. Grant of bail is a rule and refusal is an exception as held by the honourable Supreme Court in the cases reported as Tariq Bashir etc. v. The State (PLD 1995 SC 34) and Imtiaz Ahmed and another v. The State (PLD 1997 SC 545). A few lines from the referred Tariq Bashir's case (supra) are reproduced hereunder:- "The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run"
' Further few lines from the referred case of Imtiaz Ahmed and another (supra) are reproduced for guidance:- "Even in case where a person is accused of non-bailable offence and the case does not fall within the Prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither death nor imprisonment for life nor 10 years, the grant of bail in such cases is a rule and refusal an exception. My learned brother has referred in his judgment the decision of this Court in the case of Tariq Bashir v. The State PLD 1995 SC 34 which also lends support to the above view taken by me. It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. "
' Challan of the case has been submitted and A the petitioner is no more required for purpose of any recovery or investigation. It will be of no use to keep the petitioner behind the bars.
6. In view of above discussion, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac) with one surety in the like amount to the satisfaction of the Trial Court. Anyhow, the learned Trial Court is directed to complete the trial of the case within four months.