ORDER ABDUL SHAKOOR PARACHA, J.- Petitioner Mst. Shezan Sanaullah d/o Capt. Sanaullah seeks bail after arrest in case FIR No. 460, dated 19.8.2005, registered at Police Station New Town, Rawalpindi, for an offence under section 489-F, PPC, on the statement of Sameer Shaukat son of Shaukat Mehmood. The bail has been declined by the learned Additional Sessions Judge, Rawalpindi, vide order dated 25.11.2005.
2. Allegation, as contained in the F.I.R., is that the petitioner executed a cheque for- the amount of Rs. 5,0, 000/- in favour of the complainant, which, on presentation was dishonoured.
3. Mr. Muhammad Akram Sheikh, Adv., learned counsel for the petitioner, contends that the petitioner through an agreement to sell dated 8.6.2005 allegedly agreed to take measures to get substituted the name of Shamshad Sanaullah within a period not later than 20th June, 2005 in the Board of Education and in case the first party failed to get replaced the name of the Principal as with the name of second party in place of Shamshad Sanaullah withier the specified date the first party undertook to . Pay a penalty to the tune of Rs. 5,000,000/- to the second party and in this respect the first party issued a post-dated cheque No. 0051181 drawn on ABL, Satellite Town Branch, Rawalpindi, for the amount of Rs. 5000,000/- (Rupees five million) to the second party as guarantee which contract was not enforceable under section 12 of the Contract Act. Secondly, if it is presumed that the said contract is enforceable, the agreement itself provides that the second party will enforce it through the Court of law. Thirdly, the amount of Rs. 50,00,000/- was not to be paid by the petitioner to the complainant but it was only a penalty which is at par with the liquidated damages to be worked out and determined by the Court. Reliance is placed on the case reported as Province of West Pakistan v. Messrs Mistri Patel & Co. And another (PLD 1969 SC 80). He contends that the cheque was not issued dishonestly. Relies on the case reported as Major Anwar- ul-Haq v. The State (PLD 2005 Lahore 607) and Rana Ehsan v. The State (YLR 2675 Lahore). He argues that section 489-F, PPC is punishable with three years imprisonment or fine or with both and the offence does not fall in the prohibitory clause of section 497, Cr.P.C., bail is a rule and refusal an exception; the petitioner being the lady is entitled to be released on bail under proviso to section 497, Cr.P.C.; she is in incarceration since 7.10.2005, i.e. For more than two months, therefore she is entitled to bail.
4. Bail has been opposed by the learned Assistant Advocate General, assisted by the learned counsel for the complainant, who contends that the cheque was issued dishonestly; no measures were taken to substitute the name of Shamshaa Sanaullah with tho name .Of Sameer Shaukat with the Board of Education and the amount of Rs.
50,0, 000/- was not the guarantee for the said work but it was the penalty which the complainant was entitled to receive and it was paid through the past -da+ed cheque; bail before-arrest was rejected on merits by this Court on 7.10.2005 in Criminal Misc. No. 988-B of 2005 therefore the petitioner is not entitled for grant of bail.
Reliance is placed on the case reported as Mian Saghir. Ahmad and another v. The State (2005 Cr.LJ 849 Lahore). Further contends that the case falls in the exception cases because on the report of Mst. Shezan Sanaullah, the. Present petitioner, F.I.R. No. 420, dated 5.8.2005 for offences under section 148/149/440/342, PPC has been recorded at Police Station New Town, Rawalpindi that the co-owners of the property after obtaining Rs. 2 crore from different persons had gone out Of the country, past conduct of the petitioner is very relevant therefore she is not entitled to bail.
5. In rebuttal, learned counsel for the petitioner contends that consideration for grant of bail before arrest and grant of bail after arrest are altogether different; in the first round when bail was declined this Court was of the view that there was no mala fide on the part of the complainant to involve the petitioner in the case. Here, the petitioner has joined the investigation after physical remand therefore she has been able to make out a case of bail after arrest.
6. Arguments heard. Record perused. Section 489-F of PPC came about on 20.5.2002 and was introduced to the statute book in the year 2002 with the sole purpose to curb fraud and dishonesty which has to be established on a case to case basis. But where there were business transactions, genuine disputes and contractual obligations, an offence may not be the intention. See case reported as Major Anwar-ul-Haq v. The State (PLD 2005 Lahore 607).
7. On the touchstone of the above-stated case- law, the reading of the relevant para of the referred agreement to sell, entered into between the parties on 8th of June, 2005, would be necessary, which para is reproduced hereunder:-- "AND THAT the school is being run by Mr. Shamshad Sanaullah, one of the First Party, as Principal and he is recognized as Principal in the Board of Education and first party hereby undertakes to take measures to get substitutes the name of Mr. Shamshad Sanaullah with the second party within a period not later than 20th June, 2005. In case first party fails to get replaced the name of the Principal as with the name of second party in place of Mr. Shashmad Sanaullah within specified date, the first party undertakes to pay a penalty to the tune of Rs. 5,000,000/- (Rupees five million only) to the second party, In the connection the First Party has issued a post-dated cheque No. 0051181 drawn on ABL Satellite Town Branch, Rawalpindi amounting to Rs. 5,000.000/- (Rupees five million only) to the Second Party as guarantee. The Second Party shall be at liberty to encash the same if the First Party fails to replace the name of the Principal in the Board of Education with the Second Party. And in case after failure to replace the principal name if the above-said post dated cheque is dishonoured by the bank then the Second Party shall be at liberty to recover the above guarantee amount of Rs. 5,000,000/- from the Second Party through the Court of law on the risk and cost of the First Party."
8. A bare reading of the above para of the agreement would show that it is to be determined by the Civil Court that the agreement is enforceable under the law or not. Secondly the cheque No. 0051181 drawn on ABL Satellite Town Branch, Rawalpindi, amounting to Rs. 5,000,000/- in favour of the second party was issued by the first party as guarantee, In the case reported as Province of West Pakistan v. Messrs Mistri Patel & Co. And another (PLD 1969 SC 80), while interpreting section 74 of the Contract Act (IX of 1872), the honourable Supreme Court has made distinction between the liquidated damages and penalty, the relevant portion from the said judgment is reproduced hereunder:-- "Section 74 of the Contract Act does not recognize the difference that exists in the English law between liquidated damages and penalty. Under the Common Law a genuine pre-estimate of damages agreed upon by the parties is regarded as liquidated damages. But a stipulation in contract in terrorism is a penalty, In the case of liquidated damages the contract is binding upon the parties, In the case of penalty, however, the Court refuses to enforce it and awards to the aggrieved party reasonable compensation."
Thirdly, it was for the second party to recovery the amount' through the Court of law on the risk and cost of the first party, therefore, for all intents and purposes, this is the case of further inquiry within the meaning of section 497(2), Cr.P.C. Besides that, the offence under section 489-F, PPC provides punishment of imprisonment for three years or fine or both and does not fall in the prohibitory clause of section 497, Cr.P.C. Bail is rule and refusal an exception as held in the case reported as Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Additionally the petitioner being a lady is also entitled to the grant of bail under proviso to section 497, Cr.P.C.
9. Earlier, bail before arrest was declined to the petitioner by this Court vide order dated* 7.10.2005, passed in Crl. Misc. No. 988-B of 2005, but that order has no bearing on the merits of the present case, because by now it is well-settled that considerations for grant of bail before arrest and for grant of bail arrest are altogether different. The petitioners is in incarceration for the last about two months.
10. As far as registration of the other F.I.R. No. 420, dated 5.8.2005, got registered by the petitioner for offences under sections 148/149/440/342, PPC, at P.S. New Town Rawalpindi, is concerned, according to the contents of the said FIR the dispute was amongst the co-owners regarding which matter is sub judice in the Civil Court.
11. For the reasons discussed above, without going deep into the merits of the case, I accept this petition and grant bail to the petitioner subject to furnishing by her bail bonds in the sum of Rs.
2,00,000/- (Rupees two lacs) with two sureties, each in the like amount to the satisfaction of the