PLJ 2010 SC 1087
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Sardar Muhammad
Raza Khan, Ch. Ijaz Ahmed & Jawwad S. Khawaja, JJ.
ZAFAR IQBAL--Petitioner
versus
MUHAMMAD ANWAR and
others--Respondents
Crl. P. No. 300 of 2009, decided on
1.7.2009.
(On appeal from the judgment/order
dated 15.4.2009 passed by Islamabad High Court,
Criminal Procedure Code, 1898 (V of
1898)--
----S. 497--Pakistan Penal Code,
(XLV of 1860), S. 489-F--Bail, grant of--Non-prohibitory clause--Held: Where
offence falls within the non-prohibitory clause, consider favourably by
granting bail as a rule but decline to do so in the exceptional cases--As far
as exceptional circumstances are concerned those are to be taken into
consideration depending upon each case. [P.
1090] A
PLD 1995 SC 34
& 2002 SCMR 1797 ref.
Criminal Procedure Code, 1898 (V of
1898)--
----S. 497--Pakistan Penal Code,
(XLV of 1860), S. 489-F--Bail, grant of--Remained in jail for a period of six
months--No legal justification--An accused, charged for a criminal offence,
ordinarily cannot be kept into custody for the purpose of punishment--Accused had
already remained in jail for a period of six months and if the prosecution
failed to establish guilt against him, his longer detention would cause him
loss and his liberty would be curtailed for a considerable period without any
legal justification. [P. 1091]
B
Bail--
----Scope--Under the
non-prohibitory clause as well, an accused cannot claim bail as a matter of
right but such facility can be extended to him as a matter of concession,
simultaneously, keeping in mind the fact that the petitioner had already
returned a huge portion of amount received by him from the complainant--Since
the civil litigation had already commenced at the behest of the respondent who
had filed a suit for recovery of the amount against the petitioner--Bail was
allowed. [P. 1091] C
PLD 1995 SC 34
& 2002 SCMR 1797, ref.
Mr.
Haroon-ur-Rashid, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Mr. Nazir Ahmed Bhutta, ASC and Ch.
M. Akram, AOR for Respondent No. 1.
Ch. Tariq Mehmood, Addl. Prosecutor
for State.
Date for hearing: 26.6.2009.
Order
Iftikhar Muhammad Chaudhry,
CJ.--This petition is directed against the judgment dated 15.04.2009 passed by
Islamabad High Court, Islamabad whereby Cr. Misc. No. 81-BC/2009 filed by the
Respondent No. 1 was allowed and the post arrest bail allowed to the petitioner
vide order dated 30.09.2008 by the High Court was recalled.
2.
Precisely stating facts of the case are that an FIR No. 124 dated
14.04.2006 was registered with Police Station Margallah, Islamabad under
Section 489-F PPC, against the petitioner Zafar Iqbal on the complaint of the
Respondent No. 1 Muhammad Anwar, to the effect that the petitioner issued a
cheque of Rs.400,000/- (four lacs), which was
dishonoured from the bank on presentation. On registration of the case, the
petitioner applied for post-arrest nail before the Civil Judge-cum-Judicial
Magistrate,
3.
It may be noted that the petitioner again failed to comply with his
undertaking, resultantly the Respondent No. 1 moved Cr. Misc. No. 81-BC/2009
for cancellation of bail, already granted to the petitioner. The learned High
Court, on the request of the petitioner adjourned the matter twice to settle
the matter amicably, with the direction that no further adjournment would be
allowed. However, on third date of hearing, no one appeared on behalf of
petitioner. Resultantly, the petition was allowed by means of impugned order
dated 15.04.2009 on merits and on account of petitioner's failure to attend the
Court, whereby the post-arrest bail allowed to him vide order dated 30.09.2008
was recalled. Hence this petition.
4.
Learned counsel contended that the petitioner had already spent about 6
months in Jail, against the maximum sentence of 3 years under Section 489-F
PPC, therefore, being allegedly involved, his case falls within the prohibitory
clause of Section 497 Cr.P.C, as such he is entitled for release on bail
because in such like cases grant of bail is rule whereas denial is exception.
He further stated that the Courts have to decide the case following the
principle of law, without considering the amount involved in the case, like
falling within the mischief of Section 489-F PPC.
5.
On the other hand, learned counsel for the complainant argued that the
petitioner despite furnishing undertaking, failed to comply with the same,
therefore, the High Court had rightly re-called the concession of bail granted
to him. He further explained that the petitioner had entrusted huge amount to
him for the purpose of running business but he had deceived him by
mis-appropriating the amount in clandestine manner as evident from the facts of
the case. The complainant explained to him that he had given the amount to the
petitioner for the purpose of investment and after sometime he had also given
him profit but lateron stopped the payment, therefore, he filed a complaint
against him because a cheque issued by him was dishonored. Further, the
undertaking to return the money was also violated therefore,
he had filed a suit for recovery of his money and had also lodged a criminal
case against him as well.
6.
Learned Addl. Prosecutor General supported the impugned order of the
High Court.
7.
We have heard the learned counsel for the parties and have also examined
the record, so made available, carefully. A perusal whereof suggests to draw
inference that there was no business deal between the parties and the amount of
Rs.400,000/- was initially given by the complainant to
the petitioner for making investment and giving him profit of the same but at
the time when he failed to make the payment of profit for one or the other
reasons, he got registered a case against the petitioner. As far as Section
489-F PPC is concerned it prescribes sentence of 3 years. The Courts, in such
like cases where offence falls within the non-prohibitory clause, consider
favourably by granting bail as a rule but decline to do so in the exceptional
cases. As far as exceptional circumstances are concerned those are to be taken
into consideration depending upon each case. Reference may be made to the case
of Tariq Bashir and 5 others vs. The State (PLD 1995 SC 34) wherein it has been
mentioned that "Section 497 Cr.PC. divided non-bailable offence into two
categories i.e. (i) offences punishable with death, imprisonment of 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
(d) where the accused is a previous convict."
This principle has also been
reiterated in the case of Subhan Khan vs. The State (2002 SCMR 1797).
8.
It is also one of the important aspects of the case that an accused, charged
for a criminal offence, ordinarily cannot be kept into custody for the purpose
of punishment. As in the instant case the petitioner had already remained in
jail for a period of six months and if the prosecution failed to establish
guilt against him, his longer detention would cause him loss and his liberty
would be curtailed for a considerable period without any legal justification.
9.
We may further observe that under the non-prohibitory clause as well, an
accused cannot claim bail as a matter of right but such facility can be
extended to him as a matter of concession, simultaneously, keeping in mind the
fact that the petitioner had already returned a huge portion of amount received
by him from the complainant. Since the civil litigation had already commenced
at the behest of the respondent who had filed a suit for recovery of the amount
against the petitioner, we are inclined to grant him bail under the facts and
circumstances of the case narrated herein above. These are the reasons of our
short order dated 26-6-2009 which is reproduced as under:--
"For the reasons to be
recorded later, petitioner is ordered to be released on bail subject to
furnishing surety bond in the sum of Rs. 1,00,000/- and PR in the like amount
to the satisfaction of the learned trial Court. Learned trial Court is directed
to complete the trial of the case within four weeks. Abdul Sattar
S.I./Investigating Officer, present in Court, is directed to produce all the
witnesses before the trial Court at his own responsibility. No adjournment
shall be granted unless otherwise unavoidable and the compliance report shall
be sent to the Registrar for our perusal in Chambers. Petition is converted
into appeal and allowed in the above terms"
(M.S.A.) Appeal
allowed.