MUSHTAQ AHMED Versus State
This criminal petition arises out of a post-arrest bail application filed by Mushtaq Ahmed in case F.I.R. No. 165 dated 7-10-2011, registered under Section 489-F of the Pakistan Penal Code 1860 at Police Station Katha Saghral, District Khushab. The core legal question concerns whether the petitioner is entitled to post-arrest bail where the offence does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and involves a business transaction requiring further inquiry. The Lahore High Court accepted the petition and granted bail to the petitioner, holding that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C., the maximum punishment is three years, the petitioner has already been incarcerated for over three months without trial progress, and the lack of documentary evidence regarding the underlying business transaction makes the case one of further inquiry under subsection (2) of Section 497, Cr.P.C. The key principle laid down is that in offences not falling within the prohibitory clause where further inquiry is warranted, grant of bail is a rule and refusal is an exception.
- 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?
- Is an accused entitled to post-arrest bail as a rule when the offense does not fall within the prohibitory clause and further inquiry into his guilt is required?
- Does the absence of documentary evidence regarding a business transaction in a case involving a dishonoured cheque make the matter one of further inquiry?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
MUHAMMAD ANWAARUL HAQ, J.- --Through this petition Mushtaq Ahmed petitioner seeks post-arrest bail in case F.LR. No.165, dated 7-10-2011, for an offence under section 489-F PPC registered at Police Station Katha Saghral, District Khushab.
2. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been roped in this case; that there is no documentary evidence whatsoever regarding the transaction mentioned in the F.I.R.; that the offence against the petitioner does not fall within the prohibitory clause of section 497, Cr.P.C.; that in the circumstances case against the petitioner is one of further inquiry into his guilt and that petitioner is previously non-convict and is behind the bars since 8-10-2011 without any substantive progress in his trial.
3. Conversely, learned Law Officer opposing this bail application contends that the petitioner has deprived the innocent complainant from a huge amount of Rs.6,14,000; that issuance of the disputed cheque by the petitioner is admitted and dishonouring of the same is sufficient to constitute an offence under section 489-F, P.P.C.; that there is no mala fide alleged by the petitioner against the complainant to falsely implicate him in this case and that mere non-falling of an offence within prohibitory clause does not entitle any accused to be released on bail as a matter of right.
4. Heard. Record, perused.
5. Be that as it may, prima facie, F.I.R. speaks itself that the dishonoured cheque was given by the petitioner to the complainant in the backdrop of a business deal or purchase of tomato crop but there is no documentary evidence whatsoever regarding the transaction mentioned in the F.I.R. The alleged dishonest intention of the petitioner can validly be determined by the learned trial Court after recording of some evidence and case against the petitioner, prima facie, falls within subsection (2) of section 497, Cr.P.C. and is one of further inquiry into his guilt. Petitioner is behind the bars since 8-10-2011 i.e. more than three months without any progress in his trial whereas the maximum punishment provided for the offence under section 489-F, P.P.C. is imprisonment for three years and it does not fall within the prohibitory clause of section 497, Cr.P.C. grant of bail in such like cases is a rule and refusal is an exception.
6. In view of all above, I accept this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/Area Magistrate.
7. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition.
MWA/M-52/L Bail granted.