Sunday, 1 December 2013

Grant of Bail is a rule when punishment is less than 10 years

PLJ 2013 Cr.C. (Lahore) 721 Present: Shezada Mazhar, J. M. ASLAM--Petitioner versus STATE, etc.--Respondents Crl. Misc. No. 6830-B of 2013, decided on 18.6.2013. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail, grant of--Further inquiry--Dishonoured of cheque--It is correct that maximum punishment for offence u/S. 489-F, PPC is not more than three years, therefore, the present case was not covered by prohibition contained in Section 497, Cr.P.C.--Offence u/S. 489-F, PPC enacted to penalize a person who knowingly issues a cheque that it would be dishonoured, it is not a mechanism provided for the recovery of any amount on the basis of cheques which are negotiable instruments otherwise--In bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace--Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years--Principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (Punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception--So the bail will be declined only in extraordinary and exceptional cases, for example-- (a) where there is likelihood of abscondence of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict." [Pp. 723 & 724] A & B PLD 1995 SC 34, ref. Ch. Nawab Ali Mayo and Ch. Shahbaz Ahmad Mayo, Advocates for Petitioner. Ch. Muhammad Latif Khan Sra, Advocate for Complainant. Mr. Nasir Mehmood Sial, DDPP for State. Date of hearing: 18.6.2013. Order Through this petition under Section 497, Cr.P.C. Muhammad Aslam petitioner seeks bail after arrest in case FIR No. 176 dated 4.4.2013, registered under Section 489-F, PPC at Police Station Kangan Pur District Kasur on the written application of Fazal Karim complainant. 2. Briefly, according to the F.I.R., the petitioner obtained Rs. 90,38,000/- from the complainant and issued a cheque Bearing No. T 7875543 dated 30.01.2011 to return the said amount. However, when the said cheque was presented in the bank, the same was dishonoured. 3. Learned, counsel for the petitioner contends that the case has been registered with mala fide intention and ulterior motives as there is delay of more than two years in lodging the FIR which has not been explained by the complainant; that FIR does not indicate for what purpose huge amount of Rs. 90,38,000/- was given to the petitioner by the complainant; that no time, date and place of the transaction has been mentioned by the complainant in the FIR which makes the case of the prosecution is of doubtful; that the FIR has been registered by concealing the true facts as in fact the petitioner purchased land measuring 11 kanals 12 marlas for a consideration of Rs. 15,00,000/- from the complainant and an amount of Rs. 5,62,000/- was paid by him as earnest money and for the remaining amount a cheque of Rs. 9,38,000/- was issued in favour of the complainant as guarantee but the complainant with mala fide intention and ulterior motives has changed the said amount by overwriting; that brother of the petitioner namely Muhammad Ikram has also got lodged an FIR Bearing No. 267 of 2013 under Sections 420, 468, 471, PPC at Police Station Kangan Pur District Kasur against the present complainant for committing the said forgery in the said cheque. The learned counsel adds that the offence is not covered by the prohibitory clause of Section 497, Cr.P.C. The Honourable Supreme Court of Pakistan in PLD 1995 SC 34, held that bail application in offences not covered by the prohibitory clause should be allowed unless four exceptions mentioned therein are found in a particular case. According to him, the present case does not fall within the exceptions mentioned by the Honourable Supreme Court in the above cited case. 4. On the other hand, learned DDPP appearing on behalf of the State assisted by learned counsel for the complainant has vehemently opposed this petition on the ground that issuance of cheque is admitted and as the petitioner has knowingly issued the same that it would be dishonoured thus he committed the offence alleged against him; that the petitioner has deprived the complainant from huge amount and if the petitioner is enlarged on bail, recovery of said amount would not be possible for the complainant; that challan has already been submitted in the Court, hence, direction may be given to the learned trial Court for early disposal of the main case and this bail application may be dismissed. 5. I have heard the learned counsel for the parties and also perused the record with due care and caution. Perusal of the record shows that the occurrence in his case took place on 25.3.2011 while the matter was reported to the police on 4.4.2013, with the delay of more than two years without giving any plausible explanation by the complainant. Even otherwise, the FIR does not indicate that for what purpose huge amount of Rs. 90,38,000/- was given to the petitioner by the complainant. The complainant has not mentioned any witness in the FIR before whom such huge amount was given to the petitioner and even no time, date and place has been mentioned by him in the FIR. Similarly, the complainant kept mum for more than two years as FIR also does pot show any effort on behalf of the complainant for seeking the return of the said amount. Mere oral assertion has been made by the complainant in the FIR regarding the disputed amount whereas the petitioner is in possession of documentary evidence in the shape of Rapt Rozenamcha Waqiati and Fard Malkiat to show that an amount of Rs. 15,00,000/- has been paid by the petitioner to the complainant. In this way, the contention of the learned counsel for the petitioner that the petitioner has purchased land measuring 11 kanals 12 marlas for a consideration of Rs. 15,00,000/- from the complainant and an amount of Rs. 5,62,000/- was paid by him as earnest money and for the remaining amount a cheque of Rs. 9,38,000/- was issued in favour of the complainant as guarantee but the complainant with mala fide intention and ulterior motives has changed the said amount by overwriting, has some force as brother of the petitioner namely Muhammad Ikram has also got lodged an FIR Bearing No. 267 of 2013 under Sections 420, 468, 471, PPC at Police Station Kangan Pur District Kasur against the present complainant for committing the said forgery in the said cheque. 6. It is correct that maximum punishment for offence under Section 489-F, PPC is not more than three years, therefore, the present case is not covered by prohibition contained in Section 497, Cr.P.C. Offence under Section 489-F, PPC enacted to penalize a person who knowingly issues a cheque that it would be dishonoured, it is not a mechanism provided for the recovery of any amount on the basis of cheques which are negotiable instruments otherwise. Following the dictum laid down in a case reported in Tariq Bashir and 5 others Versus The State (PLD 1995 Supreme Court 34) wherein it has been held that "in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (Punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-- (a) where there is likelihood of abscondence of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict." 7. For what has been discussed above, I do not find any exceptional circumstances to refuse bail to the petitioner, when the petitioner has succeeded in making out a case of further inquiry. Hence, this application is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. (A.S.) Bail admitted

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