SOHAIL ALAM SIDDIQUE Versus State
Through this petition, the petitioner sought post-arrest bail in a case arising out of FIR registered under section 489-F of the Pakistan Penal Code 1860 for dishonestly issuing a cheque. The core legal question was whether the essential ingredients of section 489-F were met and if the case fell within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The Lahore High Court held that mere issuance or dishonour of a cheque is insufficient to invoke section 489-F without material establishing the underlying obligation, and that section 489-F cannot be used merely as a tool for financial recovery. The court further held that bail cannot be refused solely on the ground of abscondance when the case otherwise falls within the ambit of further inquiry. Consequently, the petition for post-arrest bail was accepted, noting that the punishment did not fall within the prohibitory clause of section 497, Cr.P.C. The key principle laid down is that the existence of an enforceable obligation must be shown for the application of section 489-F, P.P.C., and abscondance alone does not bar bail if the merits warrant further inquiry.
- Whether mere issuance and dishonour of a cheque is sufficient to attract section 489-F of the Pakistan Penal Code 1860 without proof of the underlying obligation?
- 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?
- Can bail be refused solely on the ground of abscondance when the case of the accused otherwise falls within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
FAROOQ HAIDER, J.--- Through instant petition, Sohail Alam Siddique (petitioner/ accused) has sought post-arrest bail in case arising out of FIR No.185/2012 dated: 18.08.2012 registered under section 489-F, P.P.C. at Police Station: Masti Gate, Lahore.
2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the record with their able assistance, it has been noticed that allegation levelled against the petitioner is that complainant supplied iron to the petitioner/accused valuing Rs.63,54,000/- and in lieu of the same, cheque bearing No.4704441 (mentioned in the FIR) was issued by the petitioner/accused to the complainant, which was subsequently dishonoured; section 489-F, P.P.C. was brought on the statute for the purpose of awarding punishment to the person, who issues the cheque dishonestly for fulfilment of obligation, which is dishonoured on presentation; for the purpose of ready reference, section 489-F, P.P.C. is hereby reproduced:-
"489-F, P.P.C. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." (emphasis added)
Bare perusal of aforementioned provision of law reflects that for invoking section 489-F, P.P.C., mere issuance of cheque or its dishonouring is not sufficient rather first of all it must have been proved that cheque was issued for fulfilment of obligation, meaning thereby that there must be material available on the record to show said obligation and in this case though it was alleged by the complainant that he supplied iron to the petitioner and in lieu of the same i.e. for the purpose of fulfilment of said obligation, impugned cheque was issued, yet learned Deputy Prosecutor General, on Court's query, under instructions of police official present in Court and after himself going through the available record has apprised that no material whatsoever has been produced by the complainant or even otherwise brought on the record to establish said obligation i.e. supply of iron by the complainant to the accused/petitioner, therefore, applicability of section 489-F, P.P.C. is a matter of further probe in the case.
As far as question of huge amount involved in the case is concerned, suffice it to say that punishment for the offence under section 489-F, P.P.C. is three years, or fine, or with both irrespective of the big amount and of course said punishment does not fall within the ambit of prohibition contained in section 497, Cr.P.C. Section 489-F, P.P.C. cannot be used as a tool for the purpose of recovery of amount. Learned Deputy Prosecutor General has further informed that petitioner was arrested in the case on 16.01.2020 and is behind the bars since then; challan report already stands submitted in the concerned Court; no useful purpose would be served to the case of prosecution by keeping the petitioner in jail for an indefinite period. When aforementioned circumstances are seen in totality, then at present, case of the petitioner falls in the ambit of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.
As far as abscondance of the present petitioner is concerned, suffice it to say that when case of the petitioner otherwise falls in the ambit of further inquiry i.e. section 497(2), Cr.P.C., then on the basis of abscondance, bail cannot be refused; in this regard, guidance has been sought from the case of "Mitho Pitafi v. The State" (2009 SCMR 299), "Qamar alias Mitho v. The State and others" (PLD 2012 Supreme Court 222), "Ehsan Ullah v. The State" (2012 SCMR 1137), "Muhammad Shafi and others v. The State and others" (2016 SCMR 1593) and "Attaullah v. The State through AG Khyber Pakhtunkhwa and another" (2020 SCMR 451).
3. In view of what has been discussed above, instant petition for grant of post arrest bail is accepted and Sohail Alam Siddique (petitioner) is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees five hundred thousand only) with two sureties each in the like amount to the satisfaction of learned trial court.
4. It goes without saying that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petition and shall have no bearing upon trial of the case, which shall be decided on its own merits by the learned trial court within a period of four months after receipt of attested copy of this order.
SA/S-47/L Bail granted.
Cited by 1 case
- Muhammad Tahir Qureshi vs The State and another 2022 IHC 42