Obaid Khan Versus State
This bail application concerns a petitioner accused of issuing a dishonoured cheque worth Rs. 10,500,000, leading to charges under Sections 489-F and 420 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to post-arrest bail, particularly given that the offence does not fall within the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898. The Court held that the petitioner was not entitled to bail, noting that the allegations were supported by the cheque return memo and that the petitioner had a history of involvement in similar offences, suggesting habitual criminal conduct. The Court reaffirmed the principle that the grant of bail in offences falling outside the prohibitory clause of Section 497, Code of Criminal Procedure 1898 is not a rule of universal application. Instead, such matters must be adjudicated based on the specific facts and circumstances of each case, and judicial discretion cannot be exercised in an arbitrary or perverse manner. Consequently, the bail application was dismissed, with a direction for the trial court to conclude proceedings expeditiously.
- Is the grant of bail mandatory for offences that do not fall within the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898?
- Can an accused's history of similar offences be considered when determining bail eligibility?
- Does the fact that an offence falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 guarantee the right to bail?
- Section 489-F, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
Order
Shahid Khan, J .--- The subject order shall dispose of application of the petitioner, Obaid Khan, for his release on bail, in case FIR No. 590 dated 20.07.2023, under sections 489-F/420 P.P.C, P.S, Matta, District Swat.
2. Reportedly, the allegations against the accused/petitioner are that he handed over a cheque net worth Rs.10,500,000/-to the complainant/ respondent, which on presentation to the bank concerned was dishonored for the want of insufficient funds in the drawer's account.
3. Arguments of learned counsel for the parties as well as learned Astt: A.G. appearing on behalf of State have been heard at a substantial length and the record gone through with their valuable assistance.
4. The record so furnished would reveal that the allegations against the accused/petitioner prima facie fmd its positive support from the cheque return memo as it has been highlighted that the cheque in question returned up-paid for the want of funds in the drawer's account. Likewise, the contents of the FIR speak in terms that the subject cheque was delivered to the complainant in the background of business relations. Above all, during the investigation track record of the accused/petitioner is also tainted to the effect to have been involved in such like offence in the past, as such, the Court is not inclined to exercise its judicial discretion in favour of the accused/petitioner. In the case of "Shameel Ahmad v. The State" reported as 2009 SCMR 174, the Apex Court has held as under;- "that accused being involved in three previous cases of similar kind was prima facie found to be a habitual offender of issuing cheques and defrauding the people.
Likewise, in case titled "Syed Hasnain Haider v. The State" reported as 2021 SCMR 1466, the Apex Court refused the bail of the petitioner therein in somewhat similar circumstances.
5. During the course of arguments, the learned counsel for the petitioner pressing hard that the punishment for the offence does fall within the prohibitory limb of section 497 Cr.P.C, as it entails the maximum punishment of three years, however, it is well settled by the Apex Court in a good number of judgments that bail in such like offences, punishment of which do not fall within the prohibitory limb of section 497 Cr.P.C is not a rule of universal thumb, rather each and every case has its own facts and circumstances and shall be adjudicated upon on its own merits. In case titled "Malik Muhammad Tahir v. The State and another" reported as 2022 SCMR 2040, the Apex Court has held as under;-
Although the offences under sections 406/468/489-F, P.P.C. do not fall within the prohibitory clause of section 497, Cr.P.C but this principle is not absolute, rather it depends upon the facts and circumstances of each case.
Similarly, in the case of "Shameel Ahmed v. The State" reported as 2009 SCMR 174, it was held by the Apex Court that;-
Grant of bail to an accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C., was not a rule of universal application, because each case had to be dealt with on its own facts and circumstances. Court vested with such discretion could not exercise the same in an arbitrary, fanciful or perverse manner. If an order granting the bail had been obtained by accused after suppressing the details of vital importance, the same could be cancelled by the Court which had passed it. Accused being involved in three previous cases of similar kind was, prima facie, found to be a habitual offender of issuing cheques and defrauding the people
6. Resultantly, the subject application stands dismissed. The subject observations recorded hereinabove are purely tentative in its nature and shall no way prejudice an independent mind of learned trial Court. However, the learned trial Court shall ensure early conclusion of the trial, preferably, within three months subject to the positive cooperation of the defence and prosecution to meet the ends of justice.
JK/138/P. Application dismissed.