2022 PLP 329 (MLD)

TARIQ MEHMOOD JAHANGIRI, J.

Through the instant petition, the petitioner seeks bail after arrest in case F.I.R. No. 548/2020, dated 19.12.2020, offence under section 489-F, P.P.C., registered at police station Kohsar, Islamabad.

2. It is alleged that the petitioner / accused has issued cheques to the complainant which were dishonored, when presented before the bank. Hence, the instant FIR.

3. Learned Counsel for the petitioner / accused inter alia contends that the petitioner / accused has falsely been implicated in this case; cheques were issued against the business transaction and there is no liability on part of the petitioner / accused to pay the amount to the complainant. Learned Counsel further contends that investigation in the case has been completed; offence does not fall within the prohibitory clause of Section 497, Cr.P.C, hence he is entitled for grant of post arrest bail.

4. Conversely, learned State Counsel contends that the petitioner / accused is nominated in the FIR; issuance of cheques and their dishonoring is admitted by him; he is involved in other cases of similar nature, hence he is not entitled for grant of bail after arrest.

5. I have considered the arguments advanced by learned counsel for the petitioner / accused, learned State Counsel on behalf of State and perused the record with their able assistance.

6. According to prosecution story, there was a business relationship between the parties and cheques were issued against the business transaction. It is admitted by the Investigating Officer that the petitioner / accused has made partial payment of Rs. 10 Million approximately to the complainant.

7. As the offence does not fall within the prohibitory clause of Section 497, Cr.P.C. In this regard law has been laid down by the Hon'ble Supreme Court of Pakistan in a case titled as "Tariq Bashir and others v. The State" (PLD 1995 Supreme Court 34), wherein, it is held that: "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 for 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 abscondance 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 (c) where the accused is a previous convict":

8. The same principle has been laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as "2011 SCMR 1708"; "2016 SCMR 1439", "2020 SCMR 1258" and "2020 SCMR 717", wherein it is held as follows: "Where a case fell within non-prohibitory clause of section 497, Cr.P.C, the concession of granting bail must be favorably considered and should only denied in the exceptional circumstances":

9. As the case depends upon the documentary evidence, it has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Saeed Ahmed v. The State" (1996 SCMR 1132), that: "The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. It has further been held that as there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution". Reliance is also placed upon a case titled as "Muhammad Shabbir v. The State and others" (2020 YLR Note 22).

10. Reliance is also placed on the case titled as "Riaz Jafar Natiq v. Muhammad Nadeem Dar" (2011 SCMR 1708), wherein bail after arrest was granted to the accused, who issued the cheque for a sum of Rs. 20 Million, which was dishonored on presenting in bank.

11. As far as the registration of other case is concerned, learned counsel states that the petitioner / accused has been granted bail in other case. It has been held in a case titled as Babar Hussain v. The State and another" (2020 SCMR 871), that: "Mere involvement of an accused in other criminal cases (without any conviction in any of them) could not be a ground to withhold the concession of bail".

12. I do not find this to be a case where bail should be refused as an exception. Ultimate conviction and incarceration of guilty accused can repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

13. Investigation in the case has been completed. The petitioner / accused is previously non-convict. He is no more required by the police for the purpose of further investigation. He is behind the bars without any progress in the trial. Fair and speedy trial is one of the fundamental rights of the petitioner; no moral and legal compulsion exists to keep him behind the bars for an indefinite period which amounts to punishment without trial.

14. A tentative assessment of record shows that the petitioner has made out a case of further inquiry as envisaged under Section 497(2) Cr.P.C.

15. In view of above, instant petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.200,000/- (Rupees Two Hundred Thousand only) with one surety in the like amount to the satisfaction of learned trial Court.

16. Needless to mention that, this is a tentative assessment which shall not affect the trial of cash in any manner. JK/223/Isl. Bail granted.