2022 PLP 144 (YLRN)

MAHMOOD AHMED KHAN, J.

This pre-arrest bail application has been filed in respect of FIR No. 361/2020 under section 489-F, P.P.C. registered at Police Station Preedy, Karachi. According to the FIR, the complainant runs the business of electronics. That one Mairajuddin and his partner namely Khalique Khan purchased electronics items from the complainant and issued cheques which were bounced. That the complainant called them at the Union Office where Khalique Khan gave a cheque of Rs. 10,00,000/- as a surety of his partner Mairajuddin and further undertook to pay Rs. 14,30,000/- on his behalf. The said cheque was bounced due to insufficient balance. On contact, said Khalique Khan told that I will not give you the amount, do whatever you want.

2. Learned counsel for the applicant contends that notice to the principal liability holder is not present and referred to in the FIR and that the matter of dispute is of civil nature. That the subject cheque admittedly issued as guarantee does not qualify to an obligation as the payment was to be made by the person who acquired the goods. That the present applicant having joined the investigation and challan having been submitted, there is no further requirement of present applicant and as such the applicant is entitled to the benefit of further inquiry.

3. Learned counsel for the complainant however contends that the earlier dealing has been referred to the in the FIR where the co-liability holder's cheque was bounced and subject cheque was issued in respect of the liability as accepted by the present applicant. It is further contended that another FIR No. 833/2019 has also been lodged at Police Station Preedy, Karachi in respect of the earlier cheque dealing of which are referred in this FIR against the co-liability holder.

4. Learned A.P.G. states that liability of the complainant in the matter having been admitted, the applicant on his part has failed to acquire the benefit by fulfilling the said liability as such concession of bail is not available to him.

5. Having heard the learned counsel and gone through the record, the relevant provision of section 489-F, P.P.C. for a ready reference is; 489-F. Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation ................... (underlining for emphasis only) The provisions of section 489-F, P.P.C. inter alia require existence of the dishonouring of cheque which has been dishonestly issued towards fulfillment of obligation. It cannot be argued that guarantee is not an obligation and for a reference the following case law is available where the words guarantee and obligation are used as synonyms; Guarantee - obligation

1. Abdul Ghaffar Adamjee v. National Investment Trust Ltd. 2019 SCMR Page 812 and 2019 CLD Page 47

2. Adil Tiwana v. Shaukatullah Khan Bangash 2015 SCMR Page 828

3. The Chairman National Account-ability Bureau v. Fehmida Begum 2015 SCMR Page 172 and 2015 CLD Page 191 SC

4. Secretary Economic Affairs Division Islamabad v. Ammarul Haq Ahmed 2013 SCMR Page 1687

5. Masood Ahmed Bhatti v. Federation of Pakistan 2012 SCMR Page 152 and 2012 PLC (C.S.) Page 470 SC

6. Petrosin Corporation (Pvt.) Ltd. Singapore v. Oil and Gas Development Company Ltd. 2010 SCMR Page 306 and 2010 CLD Page 15 SC The said words are defined as follows in the said diction; Black's Law Dictionary (Ninth Edition) liability, n. (18c)

1. The quality or state of being legally obligated or accountable; legal responsibi-lity to another or to society, enforceable by civil remedy or criminal punishment . -Also termed legal liability: subjection. Cf. FAULT. 2. (often pl.) A financial or pecuniary obligation: DEBT . "The term 'liability' is one of at least double signification. In one sense it is the synonym of duty, the correlative of right; in this sense it is the opposite of privilege or liberty. If a duty rests upon a party, society is now commanding performance by him and threatening penalties. In a second sense, the term 'liability' is the correlative of power and the opposite of immunity. In this case society is not yet commanding performance, but it will so command if the possessor of the power does some operative act. If one has a power, the other has a liability. It would be wise to adopt the second sense exclusively. Accurate legal thinking is difficult when the fundamental terms have shifting senses." William R. Anson, Principles of the Law of Contract 9 (Arthur L. Corbin ed., 3d Am. ed. 1919). "Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must." John Salmond, jurisprudence 364 (Glanville L. Williams ed., 10th ed. 1947). guaranty (gar-en-tee), n. 11. (16c)

1. A promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another who is liable in the first instance. Concise Oxford English Dictionary (Twelfth Edition) guarantee 4n. 1 a formal assurance that certain conditions will be fulfilled, especially that restitution will be made if a product is not of a specified quality. 2 something that ensures a particular outcome. 3 variant spelling of GUARANTY. 4 less common term for GUARANTOR. 4v. (guaran-tees, guaranteeing, guaranteed) 1 provide a guarantee: the company guarantees to refund your money. n provide a guarantee for (a product). n provide financial security for; underwrite. 2 promise with certainty. - ORIGIN C17: perh. from Sp. garante, corresp. to Fr. garant (see WARRANT), influenced by Fr. garantie guaranty' . guaranty /'gar(e)nti/ (also guarantee) 4n. (pl. guaranties) an undertaking to answer for the payment or performance of another person's debt or obligation in the event of a default by the person primarily responsible for it. n a thing serving as security for such an undertaking. - ORIGIN C16: from OFr. garantie, from garantir; rel. to WARRANT. Obligation 4n 1 an act or course of action to which a person is morally or legally bound. n the condition of being so bound. 2 a debt of gratitude for a service or favour. - PHRASES day of obligation (in the Roman Catholic Church) a day on which all are required to attend Mass. - DERIVATIVES obligatorily adv. Considering the above and it bears therefrom that every guarantee is an obligation. Guarantee and Obligation being synonyms having same meaning the argument of "that a guarantee is not an obligation cannot sustain".

6. In the present case prima facie the statement of the FIR does not refer to any intimation or notice to the person having the principle liability. It is also observed that the FIR in respect to the said person is also subsequent in number of the same police station.

7. In presence of the said elements, this case is found fit to be classified for further inquiry and the applicant is found entitled for the concession of bail. Accordingly, the interim pre-arrest bail granted on 12.03.2020 stands confirmed on the same terms. The applicant is however directed to ensure his appearance before the learned trial Court for the proceeding of the trial. Needless to state that the learned trial Court shall not be influenced or prejudiced by any observation present in this order and shall proceed with full confidence and decide the matter either way in accordance with law. SA/M-189/Sindh Bail confirmed.