2005 P Cr (PLP)

Petitioner seeks cancellation of pre-arrest bail granted to respondent No.1 vide order dated 6-11-2004 passed by the learned Additional Sessions Judge, Gujranwala, in case F.I.R. No.645 dated 16-10-2004, registered under sections 489-F and 406, P.P.C. at Police Station Model Town, Gujranwala.

2. Precisely allegations against the respondent are that he obtained a brand new Suzuki car Mehran on lease from petitioner on instalments and issued two cheques for payment of monthly instalment, which on presentation were dishonoured. In spite of petitioner's demand, amount representing the dishonoured cheque was not paid resulting into registration of case.

3. The respondent accused sold out the vehicle, but got registered a case of its theft which on investigation was found false and its cancellation was recommended.

4. Learned counsel for the petitioner argued that the bail before arrest was allowed in clear violation, of the view taken by the Honourable Supreme Court of Pakistan in cases of Murad Khan v. Fazal e-Subhan and another PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192; the offence is non-bailable but wrongly held bailable, and that the cheques in dispute were admittedly issued by the respondent which on representation were dishonoured.

5. Learned counsel for the State has supported the arguments of petitioner's learned counsel and submitted that in the absence of allegation of ulterior motive for intended arrest, respondent was not entitled to concession.

6. The learned counsel for the respondent/accused has argued that there are different yardsticks for grant of bail, and its cancellation. He is placing reliance on cases of Muhammad Mukhtiar v. Sajjad Hussain and 2 others 2004 YLR 2227 and Rana Ehsan v. The State 2004 YLR 2675; submits that the offence is bailable providing alternative sentence of fine.

7. Arguments heard. Record perused.

8. Bail was allowed on the strength of judgment pronounced by learned Judge in Chambers declaring the offence a bailable one.

9. To determine as to whether it is bailable or otherwise, reference to amendment is necessary. Section 489-F, P.P.C. was brought on the statute book through Ordinance No.LXXXV of 2002 Criminal Law (Amendment) Ordinance, 2002 published in official Gazette on 25-10-2002. In the Criminal Procedure Code, after the entries relating to section 489-F, P.P.C., the new entries were substituted indicated below:

1 2 3 4 5 6 7 8 489-F Dishonestly issuing a cheque for repayment of loan etc. May arrest without warrant -do- Warrant -do- Not bailable -do- Compoundable Imprisonment Of either description for 3 years or with fine or with both Magistrate 1st Class

11. The bare reading of the schedule reveals that offence under section 489-F, P.P.C. falls in non-bailable category.

12. In Muhammad Mukhtiar's. case (supra) a learned Judge in Chambers of this Court observed as under:-- "The bare perusal of the amendment shows that newly-added offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, makes the said offence, as bailable. Same is clear from the amendment in Schedule II Act V of 1898 in the Criminal Procedure Code. However, it may be pointed out that newly-added section has been shown in one copy of the Major Act, as bailable and in another as non-bailable offence. In order to resolve this controversy, I would like to refer to the salutary principle for the interpretation of Penal Law, as is evident from Maxwell on the interpretation of statutes which is reproduced as under:-- The principle applied in construing a penal Act is that, if, in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it will be resolved in favour of the petitioner who would be liable to penalty."

13. With immense respect I have not been able to subscribe to the aforementioned view in presence of provisions of the statute couched in unambiguous language. The offence, thus, is non-bailable.

14. Rana Ehsan's case is distinguishable. In that case after arrest bail was allowed on the ground of offence not falling within prohibitory clause and that the parties were doing joint business.

15. Contention that offence provides alternative sentence which may be fine alone brings it out from the prohibitory clause of section 497, Cr.P.C. Precedent law for and against this view is available.

16. In case of Muhammad Akhtar v. The State 1984 PCr.LJ 2340, it, was held by a learned Judge in Chambers of Sindh High Court that when two alternative punishments one of imprisonment and another of fine are provided for any offence, the trial Court would have unfettered discretion to resort to any punishment, therefore, the offence is not covered by the restriction imposed under section 497, Cr.P.C. This. view was followed in the cases of Arshad Mahmood v. The State 1985 PCr.LJ 2048 (Karachi); Shafqat Ali v. The State 1987 PCr.LJ 971 (Lahore) and Shakil Hussain Rashi v. The State 1992 MLD 99.

17. A contrary view has been expressed in the case of Hafiz Ahmad Khan v. The State 1988 PCr.LJ 338 (Lahore). Observations recorded in the said judgment is reproduced hereinbelow:-- "(b) Criminal Procedure Code (V of 1898)

Section 497(1)

Emigration Ordinance (XVIII of 1979), Section 22

Bailable prohibition envisaged by subsection (1) of section 497, Cr.P.C.

Scope

Court, held, would see maximum punishment prescribed for a particular offence and nothing more nor less sole criteria for determining question whether case fell within prohibitory clause of section 497, Cr.P.C. was maximum sentence prescribed in a particular offence and not minimum sentence of fine only

Considerations such as lack of powers of trial Court to award sentence of ten years or more or premature visualizing that in peculiar circumstances offence would not entail punishment more than ten years, being foreign to statutory law of bail, were totally irrelevant

Contention, that in a case punishable for ten years, if Court dealing with bail application was in a position to visualize that facts of a particular case taken to its extreme would not entail imprisonment for ten years or more and similarly offence though punishable with imprisonment for life or imprisonment for ten years, yet triable by a Magistrate First Class/Magistrate Section 30, wherein it could safely be foreseen that trial Court would not pass imprisonment for ten years or more, same would go out of restrictions contained in subsection(l) of section 497, Cr.P.C. repelled

Such was not the intention of Legislature and this could be stretching law of bail too far in favour of a favourite child of law to pull a particular case out of prohibition as to accept such a view-point would tantamount to minimizing maximum punishment prescribed in offences for purpose of bail and also taking case out of restriction imposed under section 497, Cr.P.C.

18. I respectfully follow the view taken in the above judgment. The offence, thus, providing an alternative sentence of fine only or imprisonment exceeding 10 years R.I. or fine will fall within the ambit of prohibition contained in section 497, Cr.P.C.

19. There was no allegation of false implication at the behest of police or complainant for ulterior motives to disgrace the respondent. Respondent was granted pre-arrest bail in violation of the law laid down in the case of Murad Khan (supra), wherein conditions were provided for such a relief; showing arrest for ulterior motives, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty and motivation of police on political consideration.

20. In Zia-ul-Hassan's case (supra) it was held as under:-- "The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed."

21. For what has been discussed above, the petition for cancellation of bail is allowed and order granting pre-arrest bail is set aside. N.H.Q./A-447/L Pre-arrest bail cancelled.