Zulfiqar Ali vs State and another
This criminal petition concerns an application for post-arrest bail filed by the petitioner, who was accused in an FIR registered under Section 489-F of the Pakistan Penal Code 1860 for the dishonour of a cheque. The core legal question was whether the petitioner was entitled to the concession of bail given the nature of the offence and the findings of the police investigation. The Court held that the petitioner was entitled to bail, noting that the prosecution's case relied on documentary evidence already in its possession, eliminating the risk of tampering. Furthermore, the police investigation revealed significant discrepancies in the complainant's version, suggesting the cheque amount had been altered and that no financial transaction occurred between the petitioner and the complainant. The Court emphasized that the offence under Section 489-F does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Consequently, the Court reaffirmed the principle that in non-prohibitory offences, the grant of bail is the rule and refusal is an exception, requiring favourable consideration unless exceptional circumstances exist.
- Does the 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?
- Should bail be granted when the prosecution's case relies solely on documentary evidence already in its possession?
- Is the grant of bail the rule and refusal the exception in cases falling outside 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
Through the instant petition, the petition er seeks post-arrest bail in case FIR No. 347/2020 dated 29.07.2020, offence under Section 489-F , PPC registered at police station Sajid Shaheed, District Sargodha.
2. On the previous date of hearing Nusrat Ali complainant appeared before the Court and sought an adjournment in order to hire the services of a learned counsel in this case but today no one is present of his behalf, despite repeated calls. Even otherwise, it is a State case and learned Additional Prosecutor General is ready to argue the same, therefore, I proceed to decide the instant petition after hearing arguments of learned counsel for the petitioner , as well as, learned Additional Prosecutor General and perusal of the record.
3. Arguments decided. Record perused.
4. As per brief allegations levelled in the FIR, cheque amounting to Rs. 55,00,000/-, issued by the petitioner to the complainant, was dishonoured on presentation by the concerned bank, hence the abovementioned FIR.
5. The entire prosecution case is based on documentary , evidence (dishonoured cheque and bank slip), which is already in possession of the prosecution and as such there is no chance of tampering with the same, therefore, in such circumstances no useful purpose will be served by keeping the petitioner behind the bars. Reference in this respect may be made to the case of Saeed Ahmad v. The State (1996 SCMR 1132). Moreover , as per police investigation recorded vide Zimnee No. 05, dated 28.08.2020, only an amount of Rs. 6,00,000/-, was obtained by the petitioner on loan from the brother of the complainant namely Muhammad Ashraf and in this respect a cheque was handed over by the petitioner to the abovementioned Muhammad Ashraf, who after writing Rs. 55,00,000/-, in the said cheque got the same dishonoured and lodged th instant FIR through his brother namely Nusrat Ali complainant. It is further concluded by the Investigating Officer that there was no lain-dain between the petitioner and Nusrat Ali complainant. The aboveme ntioned police findings are against the story narrated by the complainant in the FIR according to which an amount of Rs. 55,00,000/- was handed over by the complainant to the petitioner and the same was still outstanding against him. Furthermore, the punishment provided for the offence under Section 489-F , PPC is imprisonment, which may extend to three years. The offence mentioned in the FIR does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. and grant of bail in such like cases is a rule while refusal is an exception. Thus, keeping in view the law laid down in the cases of Zafar lqbal v. Muhammad Anwar and others (2009. SCMR 1488) & "Muhammad Tanveer v. The State and another " (PLD 2017 Supreme Court 733), ordaining that where a case falls within non-prohibitory clause, the concession of granting bail must favorably be considered and should only be declined in exceptional cases, the instant petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.