ABDUL HAMEED vs STATE, etc.
This criminal petition concerns an application for post-arrest bail filed by the petitioner, who was charged under Section 489-F of the Pakistan Penal Code 1860, following the dishonour of a cheque issued to the complainant. The core legal question was whether the petitioner was entitled to bail given that the cheque was returned due to 'personal withdrawal' rather than insufficient funds, and considering the petitioner's period of incarceration and the status of the investigation. The Court held that because the dishonour slip indicated the cheque was returned due to personal withdrawal rather than a lack of funds, the petitioner's liability required further inquiry, which is a matter to be determined at trial. Furthermore, the Court noted that the petitioner had been in judicial custody since January 2012 and was no longer required for investigation purposes. Consequently, the Court granted post-arrest bail, establishing the principle that where the specific reason for a cheque's dishonour creates ambiguity regarding the requisite dishonest intention under Section 489-F, the case warrants further inquiry, justifying the grant of bail pending trial.
- Does the dishonour of a cheque due to 'personal withdrawal' rather than insufficient funds warrant further inquiry in a case under Section 489-F of the Pakistan Penal Code 1860?
- Is a petitioner entitled to post-arrest bail when they are no longer required for the purpose of investigation?
- Does an 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?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioner, through this petition, seeks post arrest bail in case FIR No, 422 of 2010 dated 24.05.2010, under Section 489-F, PPC registered at Police Station Model Town, Gujranwala.
2. Briefly prosecution version contained in the FIR recorded on the written application of Muhammad Ashraf is that the complainant advanced Rs, 1,13,000/ - to the petitioner on 04.10.2009 against which a Cheque No, 1569152 dated 04.10.2009, drawn on J.S.Bank Limited Model Town Gujranwala was issued in favour of the complainant, which when presented was bounced.
3. The learned counsel for the petitioner contended that the petitioner has photo account holder and the cheque was dis-honoured due to the reasons of personal withdrawal and not for insufficient balance amount; that the petitioner is behind the bars since 19.01.2012 and is no more required for the purpose of investigation; that the offence alleged does not fall within the prohibitory clause of Section 497, Cr.P.C.
4. On the other hand, learned D.P.G. has vehemently opposed the prayer for grant of post arrest bail by submitting that the petitioner is nominated in the FIR, who admittedly issued cheque involving the said amount with dishonest intention and when the same was presented it was bounced attracting the provision of law under which case has been registered. Further contended that the challan has been submitted in Court on 27.03.2012; that the petitioner remained fugitive of law for about one year and six months; therefore, he is not entitled to the concession of post arrest bail.
5. I have heard the learned counsel for the petitioner as also the learned D.P.G. on behalf of the State and gone through the record, with their able assistance.
6. Although, the petitioner has issued cheque of Rs,1,13,000/- yet the fact remains that the petitioner being an illiterate person had opened photo account. Clause 15 of dishonouring slip shows that the cheque was returned on account of non-appearance of the petitioner (personal withdrawal). The petitioner is in judicial lock up since 19.01.2012 and he is no more required for the purpose of investigation. The fact that offence under Section 489-F, of the Pakistan Penal Code, 1860 attracts when the cheque was returned with objection of personal withdrawals, calls for further inquiry.
Liability of the petitioner will be determined at the time of trial after recording of evidence. Further incarceration of the petitioner in jail will not serve any useful purpose of the prosecution.
7. For what has been discussed above, this petition is accepted and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,50,000/- with one surety in the like amount to the satisfaction of the learned trial Court.