Zeeshan Mirza Versus State
This criminal bail application was filed by the applicant seeking post-arrest bail in a case registered under section 489-F of the Pakistan Penal Code 1860 relating to the dishonor of a cheque. The core legal question was whether a cheque issued as a security in a business transaction falls within the ambit of section 489-F and whether the applicant was entitled to post-arrest bail. The Sindh High Court held that the cheque in question was issued merely as security for a real estate business transaction and that section 489-F is not intended to be used for the recovery of disputed amounts, as civil remedies are available under the Code of Civil Procedure 1908. Finding the case to be one of further inquiry and noting that the applicant was no longer required for investigation, the court admitted the applicant to post-arrest bail. The key principle laid down is that criminal provisions regarding dishonest issuance of cheques cannot be invoked for pure business and security disputes meant for civil adjudication, and where the prosecution story creates a reasonable doubt, the benefit of bail must be extended to the accused.
- Does a cheque issued purely as security or guarantee in a business transaction fall within the ambit of Section 489-F of the Pakistan Penal Code 1860?
- Can criminal proceedings under Section 489-F of the Pakistan Penal Code 1860 be utilized as a coercive mechanism for the recovery of disputed commercial amounts?
- Does the mere registration of multiple criminal cases against an accused automatically disentitle them from the grant of post-arrest bail?
- When does a business dispute involving dishonored cheques warrant the grant of bail on the grounds of further inquiry?
- Section 489-F, Pakistan Penal Code 1860
- Code of Civil Procedure 1908
Order
Miran Muhammad Shah, J .--- Through the instant Criminal Bail Application, the applicant above named seeks his post-arrest bail in Crime No.213 of 2025, under section 489-F, P.P.C, registered at P.S Gizri, Karachi, after his bail plea was declined by the learned VIIIth Additional Sessions Judge, Karachi-South, vide order dated 21.07.2024.
2. Brief facts of the prosecution case as narrated in the FIR lodged by the complainant Khurram Saeed on 26.04.2025, at 1620 hours, are that he is serving as an Audit Director. He stated that Mr. Zeeshan Mirza son of Akhtar Mirza, who is the proprietor of Zar Zameen Zamin Estate Agency, received an investment of Rs. 5 million (50 lac) from him in January 2024. In return, Zeeshan Mirza agreed to repay Rs. 10 Million (one Crore) inclusive of profit. Against the said investment, Zeeshan Mirza issued two cheques. One of these cheques, bearing No. CA0000000407, amounting to Rs. 3 Million (30 lac), dated 05.08.2024, drawn on Faisal Bank, New Chali Branch, Karachi, was presented by the complainant through UBL, Ittehad Road Branch, Phase VII, DHA, Karachi, on 09.08.2024, but was dishonored due to insufficient funds. Thus, this case was registered against the applicant/accused.
3. The learned counsel for the applicant has mainly contended that the applicant is enjoys a good reputation amongst his peers and community and is a tax-payer, that the applicant is a renowned realtor who has not only been working in Pakistan but internationally too, running a realtor office, which is a platinum marketing partner of Emaar Pakistan and has been awarded as 'Top Alliance Partner amongst over 500 real estate firm that the complainant was an investor in the applicant's real estate business "Zar Zameen Zamin" and the said Cheques were given to the complainant as security/guarantee for the investment he made which was purely a business transaction, with the understanding that the same would not be encashed and would be returned upon final settlement of their investment or business arrangement and the said Cheques were not issued for repayment of a loan nor obligation, but rather as a security, that the investment would be returned in due course, therefore, the same does not fall within the ambit or scope of 489-F P.P.C; that the instant FIR has been lodged after a delay of more than one month, solely to harass, extort and blackmail the instant applicant and no such explanation nor justification has been given for the said delay, that it would be pertinent to mention that there are other FIRs lodged against the applicant by individuals like the complainant, who allege that the Cheques issued to them as security/ guarantee were intended for repayment. In this regard, the applicant has instituted a Civil Suit bearing No. 7068 of 2025, titled 'Zeeshan Mirza v. Aijaz Aslam and others', wherein he has arrayed the instant complainant as a Defendant amongst others and specifically mentioned the Cheque in question. In the aforementioned suit, the applicant has, inter alia, sought a declaration to the effect that the said Cheques were issued as security / guarantee and that the Defendants therein be restrained from encashing the same. The said suit is currently pending adjudication and reflects that the Cheques of the applicant are being misused to harass the applicant, who has taken appropriate legal course to rectify the situation; that notably, none of the complainant have filed any Civil Suit for recovery against the present applicant since they legally don't have a claim and by virtue of this they have nothing to prove their claims: that for in against to the illegalities by the complainant party the applicant filed a Cr. Misc. Application No. 1287 of 2025, which was dismissed, though after which the complainant party started lodging FIRs upon the applicant: that it is pertinent to mention here that the applicant has been trapped by a group of blackmailers who with their concerted effort have lodged FIRs against the applicant blackmailing him for extortion of un promised and unreasonable profits. The law does not permit registration of an FIR under Section 489-F P.P.C in a dispute arising out of a business transaction between the applicant and complainant. In support of his arguments, he has relied upon the case law reported in 2024 SCMR 1596, PLD 1990 SC 934, 1997 SCMR 412, 2023 SCMR 2122, 1968 SCMR 1308.
4. On the other hand, learned counsel for the complainant has strongly opposed for grant of bail to the applicant/accused and argued that the applicant/accused is a habitual offender and in same nature many cases were registered against him; that the applicant/accused had dishonestly issued the Cheque in question; that the delay in lodgment of FIR is not fatal in such case and the applicant/accused had committed the offence under Section 489-F P.P.C intentionally and he is also habitual person in respect of such offence and there is chance of his abscontion, therefore bail may straightaway be dismissed. Learned counsel for the complainant has placed reliance upon PLD 2021 page 903, 2009 SCMR page 174 and 2011 MLD 1288.
5. The learned Additional Prosecutor General, Sindh has adopted the arguments of the learned counsel for the complainant.
6. I have heard the learned counsel for the applicant/accused as well as the counsel for the complainant and the learned Addl. PG. Sindh.
7. Perusal of the record shows that the FIR has been lodged with a delay of eight months which is not explained. It has come on record that were some business transaction between the present applicant/accused and the complainant with regard to some real Estate deal. For the said purpose Cheque was issued for the purpose of security only. At the time of issuance of Cheque it was clarified between both the parties that the Cheque is not to be encashed and would be kept only as security to safeguard the agreement. But the complainant malafidely tried to encash the security deposit. Such business deals of transactions, do not fall within the ambit of Section 489-F, P.P.C. Prima facie section 489-F P.P.C is not a provision which is intended by the legislature to be used for recovery of the alleged amount. Civil proceedings provided the remedy under the provision of the Civil Procedure Code, 1908 for such matters. It has also been held by the Superior Courts that the mere registration of other criminal cases against the accused does not disentitle accused for grant of bail, if otherwise prima facie his case is made out for bail. Challan has already been submitted before the learned trial Court, therefore, the applicant/accused is no more required for further investigation. There is no evidence that in whose presence the subject cheque was issued. The issuance of cheque by the applicant shows that there is a business relation between the parties, which makes the case against the applicant doubtful, benefit of which shall go to the applicant being a case of further inquiry. In the case reported as Syed Amanullah Shah v. The State (PLD 1996 SC 241) Hon'ble Supreme Court has held as under.
"So whenever reasonable doubt arises with regard to the participation of an accused person in the crime about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail in such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused"
8. Similarly the case law cited in PLD 1995 SC 34 (Tariq Bashir and 5 others v. The State) is also attracted. The relevant portion is reproduced as under:-
"Grant of bail in bailable offence is a right while in non-bailable offences, the grant of bail is not a right but a concession/grace. Grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception."
9. On hearing the learned counsel for parties at length and after going through the relevant provisions of law and citation mentioned above, I have reached at the conclusion that the accused has succeeded to establish the grant of bail in view of peculiar facts and circumstances of the instant case. Accordingly, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees Two Hundred Thousand only) and P.R. Bond in the like amount to the satisfaction of the learned Trial Court.
10. Before parting with this order, this Court appreciates the assistance provided by Mr. Raj Ali Wahid Kunwar, Advocate for the applicant/accused, as well as Mr. Jahangir Hashmi, Advocate for the complainant, for their well-reasoned and thorough assistance to this Court.
11. Needless to make clarification that the observations recorded above are tentative in nature and relevant for the purpose of this bail application only hence, the Trial Court shall not be influenced in any manner whatsoever.
JK/Z-4/Sindh Application allowed.