QAISER ALI KHAN vs STATE & another
This matter comes before the Lahore High Court through a petition filed by Qaiser Ali Khan seeking post-arrest bail in case FIR No. 610 dated 18.09.2013 registered under Section 489-F of the Pakistan Penal Code, 1860, at Police Station B-Division, District Kasur, relating to the dishonour of cheques issued for the repayment of a loan. The core legal question is whether the petitioner is entitled to post-arrest bail given the circumstances of delay in the trial and the nature of the offence. The court held that the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898, that the petitioner has no previous criminal record, and that criminal proceedings under Section 489-F of the Pakistan Penal Code, 1860, cannot be used merely as a tool for financial recovery. The court allowed the petition and granted post-arrest bail to the petitioner, laying down the principle that indefinite incarceration is unwarranted when an accused is no longer required for investigation and the trial shows no material progress, and that civil remedies ought to be pursued for financial recovery rather than coercive criminal prosecution.
- Whether an offence under Section 489-F of the Pakistan Penal Code, 1860, falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Can criminal proceedings under Section 489-F of the Pakistan Penal Code, 1860, be utilized as a tool for the recovery of a loan amount?
- Is an accused entitled to post-arrest bail when the trial has been delayed without material progress and the accused is no longer required for investigation?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Code of Civil Procedure 1908
ORDER
' Through this petition, Qaiser Ali Khan, the petitioner seeks post arrest bail in case FIR No, 610 dated 18.09.2013, offence under Section 489-F of Pakistan Penal Code, 1860, registered with Police Station B-Division, District Kasur.
2. Shortly, the allegation against the petitioner as per crime report is that as repayment of loan, he issued three cheques of different amounts to the complainant which stood dishonoured on presentation to the concerned bank.
3. Arguments heard. Record perused.
4. It has been noticed that earlier, the petitioner was granted post arrest bail in the subject FIR vide order dated 24.12.2013 passed by the learned Additional Sessions Judge, Kasur, conditionally on the basis of a compromise arrived at between the parties. Due to non-fulfilment of the condition of payment of amount settled between the parties, the post arrest bail granted to the petitioner was cancelled by the learned Additional Sessions Judge, Kasur, vide order dated 16.10.2014, where-after, the petitioner absented himself from the proceedings of trial and ultimately, he was arrested on 13.09.2015. Since then, he is behind the bars. Prior to the cancellation of his post arrest bail by the learned Additional Sessions Judge, Kasur, the petitioner kept joining the process of trial between 24.12.2013 and 16.10.2014 but the prosecution did not produce evidence and as such, the trial could not be concluded. Even after his re-arrest on 13.09.2015 and submission of fresh challan on 30.09.2015 till today, no material and noticeable progress has been made in the trial proceedings.
The offence alleged against the petitioner does not fall under the prohibitory clause of Section 497 of the Criminal Procedure Code, 1898 and he, having no previous criminal record at his credit, is no more required for investigation purpose. In such an eventuality, the petitioner is not to be kept incarcerated till indefinite period especially when prior to the cancellation of his bail, he incessantly remained present before the learned trial Court for a period of about ten months which reflects his good conduct in joining the process of law. The registration of criminal case for offence punishable under Section 489F of Pakistan Penal Code, 1860, is not to be used as a tool for the recovery of amount for which law provides a separate remedy under the Civil Procedure Code, 1908.
5. For all discussed above, this Court is of view that keeping the petitioner further behind the hare would not be lucrative to the prosecution hence, the instant petition is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/-with two sureties each in the like amount to the satisfaction of learned trial Court.