Haji SARDAR ALI vs YAR MUHAMMAD and others
This matter concerns a petition for post-arrest bail filed by the petitioner, Haji Sardar Ali, who was charged under Section 489-F of the Pakistan Penal Code 1860 for the dishonour of a cheque issued in connection with a joint business transaction. The core legal question was whether the offence, which carries a maximum imprisonment of three years, falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, thereby disentitling the accused to bail. The Court held that the offence does not fall within the prohibitory limb of Section 497, Code of Criminal Procedure 1898. The Court granted bail, establishing the principle that where an offence provides for alternative punishments (imprisonment or fine), the lesser punishment must be considered for the purposes of bail. Consequently, in such cases, bail is the rule and refusal is the exception, particularly when the offence does not fall within the prohibitory clause of the Code of Criminal Procedure 1898. The petition was allowed subject to the furnishing of bail bonds.
- 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?
- When an offence provides for alternative punishments of imprisonment or fine, which punishment should be considered for the purposes of bail?
- Is bail the rule and refusal the exception for offences that do not 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
' Petitioner Haji Sardar Ali, seeks bail in case FIR No, 230 dated 14.03.2015, registered under Section 489-F, PPC, in Police Station City Mardan.
2. Allegations against the petitioner are that in connection with a joint business he handed over a Cheque No, 347323203 dated 11.12.2014 to complainant Yar Muhammad in respect of an amount of Rs, 50,00,000/-(fifty lacs) outstanding against him in connection with a joint business, which on presentation before Bank AI-Falah Mardan road, was dishonoured to due insufficient amount in the account of the petitioner, hence, this case.
3. Arguments heard and record perused.
4. Petitioner is charged for issuance of Cheque, which has allegedly been dishonoured on presentation before the concerned Bank. Admittedly, punishment provided for the offence under Section 489-F, PPC imprisonment for three years or fine or both. The gravity of the offence how high so ever may be and whatever type of transaction is involved, but in no case, the punishment may be greater than the one provided under the Statue, rather it can be lesser than the one provided in the Statue in case of leniency of the Court in light of the peculiar facts and circumstances of the case. The scheme of Section 497, Cr.P.C. Is to release an accused on bail if his case does not fall within the Prohibitory Clause of S.497, Cr.P.C. As in such like cases bail is a rule and refusal thereof an exception. Above all, punishment provided for the offence under Section 489-F, PPC, is imprisonment for three years or fine or both and it is settled law that when two types of sentences are provided for an offence then the lesser punishment is to be considered by the Courts for the purposes of bail. In the circumstances, offence under Section 489-F, PPC not only does not fall within the Prohibitory limb of Section 497, Cr.P.C., but is deemed to be bailable when only the sentence of fine is taken into consideration. In case, titled, "Riaz Jaffar Natiq Vs Muhammad Nadeem Dar and others" 2011 SCM R, 1708, the august Apex Court by following the principles laid down in case titled, "Zafar Iqbal Vs Muhammad Anwar and others" (2009 SCM R 1488), granted bail to the accused on the ground of not falling the punishment of the offence within the Prohibitory Clause of Section 497, Cr.P.C. And in that case a Cheque of rupees twenty Millions was dishonoured.
5. Deriving wisdom from the judgments of the Apex Court (Supra), I allow this petition and release the petitioner on bail provided he furnishes bail bonds in the sum of Rs, 3,00,000/- with two local, reliable and resourceful sureties each in the like amount to the satisfaction of learned Illaqa Judicial Magistrate/MOD concerned.