RAEES GHULAM MUJTABA vs STATE and another
This criminal petition was filed by the petitioner seeking confirmation of pre-arrest bail in a case registered under Section 489-F of the Pakistan Penal Code 1860, concerning the dishonour of a cheque amounting to Rs. 1,100,000. The core legal questions pertained to whether pre-arrest bail is warranted where the dispute arises out of a civil property transaction, the cheque was allegedly issued as a guarantee, there exists unexplained delay in lodging the FIR, and the offence does not fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898. The Lahore High Court observed that the FIR was lodged with an unexplained delay of nine months, suggesting deliberations, and the parties were entangled in civil litigation. Holding that the cheque appeared to have been issued as a guarantee in a business transaction and that the complainant acted with mala fide motives, the Court confirmed the petitioner's pre-arrest bail. The Court laid down that custody is not justified where an offence falls outside the prohibitory clause, the accused has joined the investigation, and no recoveries remain to be made.
- Whether an unexplained delay of several months in lodging an FIR under Section 489-F PPC indicates deliberation and mala fides justifying the grant of pre-arrest bail?
- Can pre-arrest bail be granted when a dishonoured cheque is shown prima facie to have been issued merely as a guarantee in connection with a civil property transaction?
- Does an offence falling outside the prohibitory clause of Section 497(1) Cr.P.C. warrant pre-arrest bail where the accused has joined investigation and no recovery is required?
- Section 489-F, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
Through instant petition, petitioner-Raees Ghulam Mujtaba seeks pre-arrest bail in case FIR No, 638/2010 dated 14.10.2010 registered under Section 489-F, PPC with Police Station City A-Division Rahim Yar Khan.
2. Precisely the allegation against the petitioner as per FIR is that he dishonestly issued a Cheque No 3037673 amounting Rs, 11,00,00* of his Account No, 0126200048 at Allied Bank of Rahim Yar Khan Branch in favour of the complainant, who presented the same to the said bank but it was dishonoured.
3. After hearing the learned counsel for the parties and perusing the record it transpires that the FIR has, been lodged with an unexplained delay of about nine months which shows that the same was registered after due deliberations and consultations. The FIR further goes to reveals that the petitioner is property dealer and the complainant purchased a plot measuring 6 marla through the petitioner for consideration of Rs, 11,00,000/- The plot was also alienated in the name of the complainant vide registered sale-deed No, 5838 dated 30.06.2008. Learned counsel for the complainant during course of arguments alleged that though the registered sale-deed and mutation of plot has been got sanctioned in favour of the complainant but no possession thereof has been delivered to the complainant Conversely learned counsel for the petitioner contended that petitioner issued the cheque as guarantee and he further offered that if the complainant transfer back the disputed plot to the petitioner, he is ready to pay the whole amount as alleged by the. complainant. But the complainant refused to accept the offer made by learned counsel for the petitioner. Learned counsel for the petitioner has also produced the copy of Iqrar Nama, which shows that the petitioner issued the impugned cheque as guarantee. Learned counsel for the petitioner has also produced the photo copy of Punchait Nama as well as copy of order dated 21.04.2012 passed by the learned Civil Judge Class II, Rahim Yar Khan Whereby suit filed by the complainant for partition of Khatta has been dismissed in default. Prima-facie, these facts show that parties are involved in civil litigation. There was a business transaction between the parties and the cheque was issued as guarantee but the complainant with mala fide and ulterior motive instead of implicating the original vendee, has falsely involved the petitioner in the instant case, as he intends to take the fruit from civil as well as criminal sides. It also appears that he wants to usurp the plot and also want to recover the amount, as he did not accept offer made by petitioner's side for return of plot and receipt of his disputed amount. Even other-wise the offence under Section 489-F, PPC does not fall within the prohibitory clause of Section 497(1), Cr.P.C.
4. As the ASI present in the Court states that petitioner has joined the investigation and nothing is to be recovered from him, therefore, handing over the custody of the petitioner to the police would not any useful purpose to the prosecution.
5. For what has been discussed above, instant petition is accepted and ad-interim bail already granted to the petitioner vide order 'dated 14.05.2012 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Re. 100,000/- (rupees one lac only) with one surety in the like amount to the satisfaction of learned trial Court.
6. Before parting with this order it is made clear that the above observations are purely tentative in nature and would not prejudice the case of either party.