2022 PLP 1467 (SCMR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 20.01.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case registered vide FIR No. 170/2021 dated 20.10.2021 under section 489-F, P.P.C. at Police Station Bado Malhi, District Narowal, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he had business relations with the complainant and had purchased six cars worth Rs.117,00,000/- (rupees one crore seventeen lacs) from him. Out of the total amount the petitioner paid Rs.17,00,000/- in advance as cash whereas for the rest of the amount i.e. Rs.100,00,000/- (rupees one crore) he gave a cheque to him, which was dishonoured on presentation to the bank.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that in fact the petitioner had given a blank cheque to one Abdul Jabbar in settlement of some business transaction, who has fraudulently gave it to the complainant. Contends that neither the petitioner purchased six cars from the petitioner nor did he give any cheque to the complainant. Contends that even if the claim of the complainant is believed, even then at the most he can file a civil suit for recovery of the amount. In support of his argument, he relied on Abdul Saboor v. The State (2022 SCMR 592) to contend that section 489-F, P.P.C. is not a provision which is to be used for recovery of an alleged amount. Contends that the petitioner is behind the bars for the last more than four months and his further incarceration, would not serve any purpose to the prosecution. Contends that maximum punishment provided under the statute for the offence under section 489-F, P.P.C. is three years and the same does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, the petitioner deserves to be granted bail.

4. On the other hand, learned Law Officer assisted by learned counsel for the complainant defended the impugned order. It has been contended that the cars were handed over to the petitioner for which sufficient evidence is available on record. Contend that another FIR of similar nature has been registered against the petitioner. Lastly contend that the signatures and the account of the petitioner on the disputed cheque are not denied, therefore, the petitioner does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused the available record with their assistance. As per the contents of the crime report, the petitioner and the complainant had business ties; the petitioner purchased six cars worth Rs.117,00,000/- (rupees one crore seventeen lacs) from the complainant and paid Rs.17,00,000/- in advance in cash whereas for the rest of the amount i.e. Rs.100,00,000/- (rupees one crore) he gave a cheque to him, which was dishonoured when presented to the Bank. However, the petitioner denies having received any car or giving of the disputed cheque to the complainant. It is the stance of the petitioner that he had given a blank cheque of the amount in question to one Abdul Jabbar for purchase of a bungalow, which is now being utilized against him. On our specific query, learned counsel for the complainant admitted that the complainant did not have the receipt. It seems the petitioner and the complainant were in business relations but whether the petitioner purchased the cars and issued the cheque in question to the complainant is a question, which would be resolved by the learned Trial Court after recording of evidence. This Court in the case of Abdul Saboor v. The State (2022 SCMR 592) has categorically held that section 489-F of P.P.C. is not a provision which is intended by the Legislature to be used for recovery of an alleged amount, rather for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of C.P.C." The petitioner is behind the bars for the last more than four months and the maximum punishment provided under the statute for the offence under section 489-F, P.P.C. is three years and the same also does not fall within the prohibitory clause of section 497, Cr.P.C. It is settled law that grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception. Even otherwise, liberty of a person is a precious right which cannot be taken away without exceptional foundations. So far as the argument of the learned counsel for the complainant that another FIR of similar nature has been registered against the petitioner is concerned, mere registration of FIR against an accused does not disentitle him for the grant of bail if on merits he has a prima facie case. In Moundar and others v. The State (PLD 1990 SC 934), the accused was involved in many other criminal cases but despite that he was given bail on merits. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 20.01.2022. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.500,000/- with on surety in the like amount to the satisfaction of learned Trial Court. MWA/N-14/SC Bail granted.