USMAN TAHIR vs THE STATE
This is a criminal petition filed by Usman Tahir seeking post-arrest bail in case F.I.R. No. 538 registered under Section 489-F of the Pakistan Penal Code 1860 at Police Station Naulakha, Lahore. The core legal question was whether the petitioner was entitled to post-arrest bail given that a civil suit concerning rendition of accounts and the disputed cheques was already pending between the parties prior to the FIR, making the matter one of further inquiry. The Lahore High Court held that the case fell within the purview of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898, noting that the offence did not fall within the prohibitory clause and that grant of bail in such matters is the rule while refusal is an exception. The court laid down the principle that where a genuine civil dispute regarding financial transactions and cheques is already sub judice prior to criminal proceedings, the criminal case generally warrants further inquiry under Section 497(2) Cr.P.C., entitling the accused to bail.
- Whether post-arrest bail can be granted under Section 497(2), Code of Criminal Procedure 1898 when a civil suit regarding the disputed transaction and cheques was filed prior to the registration of the criminal case?
- Does an offence under Section 489-F of the Pakistan Penal Code 1860 attract the prohibitory clause contained in Section 497(1) of the Code of Criminal Procedure 1898?
- Is bail to be granted as a rule and refusal as an exception in cases where the alleged offence does not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
CH. IFTIKHAR HUSSAIN, J.----Petitioner Usman Tahir through the instant petition has prayed for post-arrest bail in case F.I.R. No, 538 registered under section 489-F, P.P.C. with Police Station Naulakha, Lahore on 12-8-2010.
2. Briefly the prosecution case as per the F.I.R. is that complainant Uzma Babar was working as distributor in the company of the petitioner.. She purchased cosmetic items worth Rs,5,00,000 from them. She after few days returned those items to them. He instead of returning the amount to her, gave her two cheques of that amount drawn on the Bank Al-Habib Ltd, Chaklala Branch, Rawalpindi. The same on presentation were dishonoured for want of funds.
3. After hearing the learned counsel for the parties and perusing the record, I find that the petitioner has brought the suit for rendition of accounts and permanent injunction against the complainant lady and the aforesaid bank on 27-3-2010. It, thus, was much prior to the registration of the instant case. It was in respect of the transaction in question between the complainant lady and the petitioner's company (T.F. International). He has prayed therein as follows:-- "Decree for rendition of accounts may kindly be passed in favour of the plaintiff and against the defendant No, 1 and decree for permanent injunction restraining the defendants from encashing the Cheque Nos.5066292, 5066293, 5066294 of A/C No, 00610981000970018 amounting more than 5 lacs of Bank Al-Habib, Branch Scheme-III, Rawalpindi may pleased be passed in favour of the plaintiff and against the defendants."
4. It may be mentioned here that in para-4 of his plaint in the suit, there is mention of the disputed cheques. The stance of his learned counsel is that this transaction had taken place under an agreement between the plaintiff-company therein and the complainant lady and one of the conditions of the same was that she will be entitled to get back her amount in case of return of her purchased cosmetic items to them and while she has not returned them so far the same and so, she was not entitled to get back the money; and that the cheques were infact issued as guarantee or security of such transaction.
5. The said suit now statedly is pending before the court of Mr. Ghulam Mustafa Barlas, learned Civil Judge, Rawalpindi. Any verdict regarding the transaction and the cheques in question is to be returned therefrom in due course of trial therein. Hence, till such time, the case against him definitely requires further inquiry into his guilt. So, the same is covered under subsection (2) of section 497, Cr.P.C.
6. He is stated to be behind the bars since 14-8-2010 and previous non-convict, which has not been controverted by the other side.
7. The fact also remains that the alleged offence does not attract the prohibition contained in section 497(1), Cr.P.C. In such like cases grant of bail is a rule and refusal an exception.
8. I hardly find any exceptional circumstance to warrant refusal of the relief to him. In this regard reference can be made to the case of Tariq Bashir and 5 others v. The. State (PLD 1995 SC 34).
9. In these circumstances of the case, I have been persuaded to allow him the relief prayed for.
10. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the Illaqa/Duty Magistrate.
11. It may be clarified here that the above-mentioned observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.