2019 PLP 2125 (YLR)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Through this petition, Tahir Masood Butt, the petitioner seeks his release on post-arrest bail in case FIR No.1265/2011, dated 17.12.2011, offence under Section 489-F, P.P.C., registered with the Police Station Model Town, District Gujranwala.

2. As per crime report, the precise allegation against the petitioner is that he used to purchase motorcycles from the complainant on credit basis. On 15.8.2011, he purchased motorcycles of Rs.4,50,000/- from the complainant and in lieu thereof he issued cheques in favour of the complainant, out of which one cheque was encashed whereas one of the said cheques bearing No.3972553 of Rs.3,00,000/- was dishonoured by the Bank.

3. Despite repeated calls, no one entered appearance on behalf of the complainant despite the fact that name of learned counsel is duly reflected in the cause list but no intimation qua his absence, therefore, this Court is left with no option except to decide this bail petition after hearing arguments of learned counsel for the petitioner, learned D.P.G. and perusing the available record.

4. The date of occurrence has been mentioned in the FIR as 20.11.2011, whereas, the FIR was chalked out on 17.12.2011, after considerable delay of almost twenty-seven days. The prosecution has failed to advance any sufficient reason for such inordinate delay in lodging of FIR, therefore, chances of petitioner's false implication cannot be ruled out. Guidance is sought from Saeed Ahmad v. The State (2012 PCr.LJ 1293).

5. Moreover, there is nothing on record to establish that the cheque in question was issued for repayment of any loan or fulfilment of any financial obligation, which is sine qua non to attract the provisions of Section 489-F, P.P.C. rather narration of crime report makes it crystal clear that there was business transaction between the parties, therefore, alleged complicity of the petitioner in the commission of alleged offence is necessarily a matter of further inquiry in terms of Section 497, Cr.P.C. Admittedly, the cheque was issued as guarantee by the petitioner for the purchase of motorcycles, meaning thereby, civil liability of contractual obligation is occurred against the petitioner. Actually, no physical amount has been taken by the petitioner from the complainant.

6. The offence under Section 489-F, P.P.C. does not fall within prohibitory clause of Section 497, Cr.P.C. and where the offence against the petitioner does not fall within prohibitory clause of Section 497(1), Cr.P.C. the grant of bail is a rule and refusal thereof is an exception. Reliance be made upon Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708).

7. So far as contention of the learned Law Officer is that the petitioner being fugitive from law, has lost his right of claiming discretionary relief. It is noticed that the Hon'ble Supreme Court of Pakistan in the case of Ikram-ul-Haq v. Rana Naveed Sabir and others (2012 SCMR 1273) has observed that:- "We have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because the law is by now settled that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as a matter of right and not by way of grace or concession. Bail is sometimes refused to an accused person on account of his absconsion but such refusal of bail proceeds primarily upon a question of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail."

8. As regards the other contention of learned Law Officer that the petitioner is involved in similar nature of cases suffice it to say that there is no conviction on the part of the petitioner in such cases. Reliance is made upon Jafar Hussain alias Jojo v. The State (2008 PCr.LJ 1444).

9. The investigation is completed and petitioner is behind the bars since his arrest i.e. 18.12.2018. He is no more required to the police for further investigation. During investigation, no recovery has been effected from him. Further incarceration of the petitioner would not serve any useful purpose.

10. For the above reasons, this petition is accepted and petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.

11. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition. MQ/T-7/L Bail granted.