2019 PLP 2891 (YLR)

SHAKEEL AHMAD, J.

Through the instant petition, the petitioner Jibran Rasheed son of Muhammad Rasheed, seeks post arrest bail in case FIR No.04 dated 01.11.2017, registered under section 489-F, P.P.C., at Police Station KRS, Peshawar.

2. Vide order dated 04.06.2018, the petitioner was declined bail by the learned Additional Sessions Judge-IV, Peshawar, hence this petition.

3. The brief facts of the prosecution case are that complainant namely Siraj-ul-Haq son of Shahabuddin on 08.11.2017 submitted a written complaint to the Station House Officer of Police Station Khan Raziq Shaheed (Peshawar) to the effect that he has given Rs.12,00,000/- to accused Jibran Rasheed son of Muhammad Rasheed for the purpose of business; that the complainant time and again requested the accused for the return of his amount, but he did not return the said amount to the complainant by using delaying tactics; that lastly the accused issued a cheque bearing No.60341476 dated 28.07.2017 amounting to Rs.12,00,000/- and handed over the same to the complainant for encashment; that when the complainant deposited the said cheque in his own account at Sonehri Bank Khyber Bazar, Peshawar, the same was dishonored due to "Funds Insufficient". The Police conducted preliminary inquiry into the matter and registered the case FIR against the accused.

4. It is argued by the learned counsel for the petitioner that the cheque in question has not been issued in favour of the complainant; that the offence with which the petitioner is charged does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, he is entitled to the concession of bail.

5. As against that the learned counsel appearing on behalf of the complainant and the learned counsel representing the State jointly argued that the petitioner is a habitual offender and the cheque in question was given in a business transaction, therefore, section 489-F, P.P.C. is attracted in the present case and prayed for dismissal of the instant petition.

6. Arguments heard and record perused.

7. From perusal of record, it transpired that it is a case of business transaction between the petitioner and the complainant, therefore, the matter between them is that of civil nature, however, the offence with which the petitioner is charged does not fall within the prohibitory clause of section 497, Cr.P.C., maximum punishment provided for that offence is three years, or fine or both. The scheme of section 497, Cr.P.C. is to release an accused on bail if case is does not fall within the, prohibitory clause and in such like cases bail is a rule and refusal thereof is an exceptional. Above all, punishment provided for the offence of section 489-F, P.P.C. is imprisonment for three years or fine or both. It is a settled law that when two types of sentences are provided for an offence then the lesser punishment is to be considered by the Court for the purpose of bail. In the circumstances, offence under section 489-F, P.P.C. not only does fall within the prohibitory clause of section 497, Cr.P.C., but it is deemed to be bailable when only the sentence of fine is taken into consideration. In this respect reliance can be placed on the case reported as Riaz Jafar Natiq v. Muhammad Nadeem Dar 8 others (2011 SCMR 1708) wherein the august Supreme Court of Pakistan by following the principle laid down in the case reported as Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) granted bail to the accused on the ground of not falling the punishment of the offence within the ambit of prohibitory clause of section 497, Cr.P.C. and in that case a cheque of Rs.20 million was dishonored. Moreover, where business transaction was admitted the Court had allowed bail. In this regard, reliance is placed on the cases of Muhammad Akbar v. The State (2005 PCr.LJ 677), Rana Ehsan v. The State (2004 YLR 2675), Major Anwar-ul-Haq v. The State (PLD 2005 Lahore 607) and Haq Nawaz Khan v. The State (2006 YLR 50) mere involvement of the accused in a number of cases is not sufficient to deprive him of his liberty, pendency of other cases of similar nature against the petitioner without showing his conviction is not sufficient to refuse concession of bail to the petitioner. In this behalf reliance is placed on the cases of Aftab Hussain v. The State (2004 SCMR 1467), Sher alias Shera and another v. The State (1999 MLD 1643) and Karim Bux v. The State (2001 PCr.LJ 1802).

8. For the reasons discussed above, this petition is allowed and it is directed that the petitioner be released on bail provided he furnishes bail bonds in the sum of Rs.2,00,000/- (Rupees two lac) with two sueties, each in the like amount to the satisfaction of Illaqa/Duty/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. There are the detailed reasons of short order of even date. MQ/107/P Bail granted.