BAD SHAH JAN vs ALLAH DITTA SETHI & others
This petition was filed under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of post-arrest bail granted to the respondent in a case registered under Section 489-F of the Pakistan Penal Code 1860. The core legal question was whether the issuance of a cheque that was subsequently dishonoured constitutes a criminal offence under Section 489-F when the underlying transaction was a 'Qarz-e-Hasna' (a loan given on compassionate grounds, repayable only when the borrower is able to pay). The Court held that where the disputed amount is advanced as Qarz-e-Hasna, no criminal liability is constituted, as such a loan is free from interest and repayable only upon the borrower's capacity to pay. Consequently, the Court found that the matter fell within the scope of 'further inquiry' and that the bail order did not suffer from any illegality. The petition for bail cancellation was dismissed, with the Court emphasizing that the determination of facts and allegations must be left for the trial stage.
- Does the issuance of a cheque for a 'Qarz-e-Hasna' transaction constitute a criminal offence under Section 489-F of the Pakistan Penal Code 1860?
- Is a case involving 'Qarz-e-Hasna' considered a matter of further inquiry for the purpose of bail?
- Can bail be cancelled when the underlying transaction is based on compassionate grounds rather than a commercial business transaction?
- Section 497(5), Code of Criminal Procedure 1898
- Section 489-F, Pakistan Penal Code 1860
ORDER
This petition under Section 497(5) of Cr.P.C. is preferred by one Badshan Jan s/o Khawas Noor petitioner/complainant, seeking cancellation of post-arrest bail granted to Respondent No, 1/accused Allah Ditta, by learned Addl. Sessions Judge, Islamabad vide order dated 06.04.2012 in connection with FIR No, 58, dated 16.02.2012, under Section 489-F, PPC of Police Station Margalla Islamabad.
2. It is submitted by the learned counsel that Respondent No, 1 is specifically nominated in the FIR with the role of issuing a cheque for 14,80,000/- with mala fide intention to defraud the petitioner because it was dishonoured on presentation.
3. It is next submitted that the bail order is not a speaking order, the parties were not doing any business transaction and the amount was given as loan, which was returnable and in token of that post-dated cheque was issued.
4. It is further submitted that the affidavits of witnesses Gul Taj Ali and Maliq Khan establish the fact that the amount, as loaned by the Respondent No, 1, against the cheque for Rs, 1,480.000/-.
5. Learned Deputy Attorney-General, on the, other hand, supported the bail granting order by maintaining that as a matter of fact, the amount in question, in stricto senso, was not loan rather the same was "Qarz-e-Hasna", returnable by the Respondent No, 1, on his requisitioning the ability to repay the debt amount, therefore, there was no mala fide intention for the issuance of cheque.
6. According to the FIR, the complainant had given Rs,1,480,000/- as "Qarz-e-Hasna" to the Respondent No, -1, (Allah Ditta Sethi Wahi) against Cheque No, A-2528081 of JS Bank, F-8 Markaz Islamabad, which on presentation was dishonoured
7. As per Ground-b of the petition there was an agreement between' the parties dated 27.09.2010 and affidavits of arbitrators/witnesses clearly prove that the amount was taken by the Respondent No, 1 as loan and there was no business transaction between the petitioner and Respondent No, 1 in any manner. The contents of FIR clearly indicates that the petitioner advanced Rs, 14,80,000/- as "Qarz-e-Hasan" to Respondent. No 1. It is, therefore, an admitted fact that the loan was of a special kind.
8. According to Tafheem-ul-Quar'an, Volume I by Maulana Abu-ul-Ala Modoodi, Qarz-e-Hasna is that kind of loan, which is given for the purpose of helping another with an object that it should be payable only when the borrower is in a position to pay. Guidance in this respect may be solicited from case law "Habib Bank V. Messrs Qayyum Spinning Ltd. 2001 M LD 1351 and Dr. M. Aslam Khaki V.
Syed Muhammad Hussain and 2 others PLD 2000 SC 255 wherein it was held that Qarz-e-Hasna is that kind of loan, given on compassionate ground, free from interest/mark-up or service charges and re-payable if and when the borrower is able to pay.
9. With above background, in my view, where the disputed amount is alleged to have been advanced as Qarz-e-Hasna, no criminal liability thus could be constituted.
10. All the allegations and facts shall be determined at the trial stage after appreciation of evidence. At present, the matter falls under the scope of further inquiry, where the maximum punishment is three years and, therefore, the bail granting order does not seem to be suffering from any illegality.
11. In view of above, I find no force in this petition which is hereby dismissed but with observation that above assessm ent shall have no bearing upon the merits of the case.