NASEER AHMAD vs STATE and another
This petition for post-arrest bail arises from a criminal case registered under Section 489-F of the Pakistan Penal Code 1860, concerning the alleged issuance of a dishonoured cheque. The core legal question is whether the petitioner is entitled to bail given the circumstances of the case, specifically regarding the delay in FIR registration, the nature of the offence, and the availability of civil remedies. The Court held that the petitioner is entitled to bail, noting that the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Court emphasized that Section 489-F is a penal provision and not a mechanism for debt recovery, for which civil remedies under the Code of Civil Procedure 1908 exist. Furthermore, the significant delay in lodging the FIR and the lack of progress in the trial, combined with the petitioner's status as a non-convict, warranted the grant of bail. The key principle laid down is that in cases not falling within the prohibitory clause, the grant of bail is the rule and refusal is the exception.
- 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?
- Is Section 489-F of the Pakistan Penal Code 1860 intended to be used as a mechanism for the recovery of disputed money?
- Can bail be granted where there is an unexplained delay in the registration of the FIR and the trial has not progressed?
- Section 497, Code of Criminal Procedure 1898
- Section 489-F, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Order XXXVII, Code of Civil Procedure 1908
ORDER
Through this petition under Section 497, Cr.P.C. Naseer Ahmad petitioner has sought bail after arrest in case FIR No, 135/15, dated 04.05.2015 registered at Police Station Sadar Phoolnagar, District Kasur in respect of an offence under Section 489-F, PPC.
2. After hearing the learned counsel for the parties and going through the record with their able assistance it has been noticed that this is bail after arrest and only tentative assessment is required at this stage. There is a delay of one year, three months and three days in registration of the FIR which has not been explained by the complainant. It is an admitted fact that the petitioner is behind the bars since 15.11.2015 without any substantive progress in his trial in spite of the fact that report under Section 173, Cr.P.C. in this case has already been submitted in the learned trial Court. The petitioner is previously non-convict, never involved in any case of similar nature.
Admittedly the complainant has got- the remedy of filing suit under Order XXXVII, CPC before the Court of competent jurisdiction for the recovery of disputed amount. I may observe here that Section 489-F, PPC is not a mechanism for the recovery of money in dispute. This is a penal section which carries maximum punishment of three years. The question whether the cheque in issue is a guarantee cheque or the same has been issued for fulfillment of financial obligation will be resolved by the learned trial Court at the time of trial after recording evidence in this case. The offence with which the petitioner is charged does not fall within the prohibitory clause of Section 497, Cr.P.C. In such like cases grant of bail is a rule and its refusal is an exception. Reliance in this regard is placed on the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC,34) and Riaz Jafar Natiq v. Muhamamd Nadeem Dar and others (2011 SCM R 1708).
3. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of sub-section (2) of Section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 100,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.