PLJ 2025 SC (Cr.C.) 7
[Appellate Jurisdiction]
Present: Jamal Khan
Mandokhail, Mrs. Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ.
MUHAMMAD ANWAR-- Petitioner
versus
STATE and another--Respondents
Crl.
P.L.A. No. 340 of 2024, decided on 3.6.2024.
(Against the order dated
29.01.2024 passed by the Lahore High Court, Lahore passed in Crl. Misc No.
82102/B of 2024).
Criminal Procedure Code, 1898 (V of 1898)--
----S.
497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail before arrest has been
declined--Leave to appeal filed--Dishonoured of cheque--To fulfil petitioner’s
demand, complainant also gave him Rs. 2,00,000/---Eventually, Petitioner failed
to complete transaction and complainant started to demand his amount along with
compensation--Primarily, agreement in question is executed between Petitioner
and “M” regarding plot--The perusal of said agreement indicates that cheque in
question was issued as “Guarantee” from petitioner to “M”--The complainant has
failed to produce any receipt issued by petitioner while receiving cash amount
of 2,00,000/---The tentative assessment of record shows that it is not toward
fulfillment of any obligation but rather it was given as security--Prima
facie, it does not attract elements of Section 489-F, P.P.C. [Pp. 9 & 10] A & B
Dishonoured of Cheque--
----Every transaction where a cheque is dishonoured may not
constitute an offense--The foundational elements to constitute an offense under
this provision are issuance of cheque with dishonest intent, cheque should be
towards repayment of loan or fulfillment of an obligation, and lastly that
cheque is dishonoured [P. 10] C
2013 SCMR 51.
Bail--
----Liberty of a person is a precious
right which has been guaranteed by Constitution of Islamic Republic of
Pakistan, 1973--By now it is also well settled that it is better to err in
granting bail than to err in refusal because ultimate conviction and sentence
can repair wrong resulted by a mistaken relief of bail. [P. 10] D
PLD 2022 SC 475.
Mr. Muhammad Amir Malik, AOR along with Petitioner.
Mr. Irfan Zia, Additional Prosecutor General, Punjab, Mr. Abdul Sami, SDPO Sargodha and M.
Sami Jan, I.O for State.
Mr. Shahid Tabassum, ASC and Syed Rifaqat Hussain Shah, AOR for Complainant.
Date of hearing: 3.6.2024.
Judgment
Syed Hasan Azhar Rizvi, J.--Through
the present petition, the petitioner seeks leave to appeal against the order of
Lahore High Court, Lahore, dated 29.01.2024, (Impugned Order) whereby
the pre-arrest bail has been declined to him in FIR No. 1002 dated 17.10.2023
registered under Section 489-F, P.P.C. at the Police Station City Sargodha.
2. According to the
gist of the aforesaid FIR lodged by Muhammad Pervaiz Ali Hassan (complainant),
on 08.06.2023 the brother-in-law of the complainant purchased the property from
the accused through the complainant. The complainant in this regard made a
payment of Rs. 20,00,000/-to the petitioner in the presence of witnesses and in
return, the petitioner/accused Muhammad Anwar issued a cheque bearing number
02559350 of his account before the witnesses in favour of the complainant. That
on the petitioner’s demand, the complainant also gave him Rs. 2,00,000/-.
Subsequently, the petitioner failed to complete the transaction therefore the
complainant demanded back his amount and compensation. On the specified date,
complainant deposited the cheque in question in the account for its encashment
but the same was dishonoured due to a dormant account.
3. The learned
counsel for the petitioner contends that the petitioner has been falsely
implicated in the case with mala fide intention and ulterior motives; that the
petitioner sold the house to the brother-in-law of the complainant namely Attique
and the cheque in question has been given as a guarantee and this fact has
already been mentioned in the agreement; that the complainant has no nexus
whatsoever with the petitioner; that the petitioner has already instituted a
civil suit regarding the agreement in question before the civil Court as he is
the owner and in possession of the plot in question as per the said agreement
and the complainant has registered a false and frivolous case against accused.
4. The learned law
officer assisted by the learned counsel for the complainant vehemently opposed
the contentions raised by learned counsel for the petitioner. They contend that
the petitioner is specifically named in the FIR and he committed fraud with the
complainant by issuing a cheque in question of his dormant account; that the
petitioner attempted to deprive the complainant of a huge amount and issued a
cheque dishonestly which was dishonoured by the concerned bank; that during the
investigation, the petitioner has been found guilty of the offence and lastly
learned counsel for the complainant for dismissal of the instant petition.
5. We have heard
learned counsel for the parties and perused the material available on the
record.
6. The allegations
outlined in FIR are that the complainant’s brother-in-law purchased the
property from the Petitioner on 08.06.2023 through complainant and complainant
in this regard made the payment of Rs. 20,00,000/-to the petitioner in the
presence of witnesses and in return petitioner issued cheque No. 02559350 of
his account before the witnesses in favour of the complainant. To fulfil the
petitioner’s demand, the complainant also gave him Rs. 2,00,000/-. Eventually,
the Petitioner failed to complete the transaction and complainant started to
demand his amount along with compensation.
7. Primarily,
the agreement in question is executed between Petitioner and Muhammad Attique
regarding the plot. The perusal of said agreement indicates that the cheque in
question was issued as “Guarantee” from the petitioner to Muhammad Attique. The
complainant has failed to produce any receipt issued by the petitioner while
receiving cash amount of 2,00,000/-. The tentative assessment of the record
shows that it is not toward the fulfillment of any obligation but rather it was
given as security. Prima facie, it does not attract the elements of Section
489-F, P.P.C.
8. This
Court has held in the case titled Mian Allah Ditta,[1]
that every transaction where a cheque is dishonoured may not constitute an
offense. The foundational elements to constitute an offense under this
provision are the issuance of the cheque with dishonest intent, the cheque
should be towards repayment of loan or fulfillment of an obligation, and lastly
that the cheque is dishonoured.
9. Furthermore,
this Court in the case of Abdul Rasheed,[2]
has ruled as follows:
“Even otherwise, even if the complainant
wants to recover his money, Section 489-F of P.P.C. is not a provision which is
intended by the Legislature to be used for recovery of an alleged amount. In
view of the above, the question whether the cheques were issued towards
repayment of loan or fulfillment of an obligation within the meaning of Section
489-F, P.P.C. is a question, which would be resolved by the learned Trial Court
after recording of evidence. The maximum punishment provided under the statute
for the offence under Section 489-F, P.P.C. is three years and the same does
not fall within the prohibitory clause of Section 497, Cr.P.C. It is settled
law that grant of bail in the offences not falling within the prohibitory
clause is a rule and refusal is an exception.”
10. Liberty
of a person is a precious right which has been guaranteed by the Constitution
of the Islamic Republic of Pakistan, 1973. By now it is also well settled that
it is better to err in granting bail than to err in refusal because ultimate
conviction and sentence can repair the wrong resulted by a mistaken relief of
bail; this Court in the case of Chairman NAB,[3]
has ruled as follows:
“To err in granting bail is better than to
err in declining; for the ultimate conviction and sentence of a guilty person
can repair the wrong caused by a mistaken relief of bail, but no satisfactory
reparation can be offered to an innocent person on his acquittal for his
unjustified imprisonment during the trial.”
11. For the above
reasons, this petition is converted into an appeal and allowed. The impugned
order of the High Court dated
29.01.2024 is set
aside. The petitioner is admitted to bail subject to furnishing bail bonds in
the sum of Rs. 100,000/-(one lac) with one surety in the like amount to the
satisfaction of the trial Court.
12. Before
parting, it is reiterated that the observations made hereinabove are tentative
in nature. The trial Court is at liberty to independently adjudicate the case
on its own merits, without being influenced by the observations made
hereinabove.
13. Above
are the reasons of our short order of even date.
(A.A.K.) Appeal allowed