' ALI NAWAZ CHOWHAN, J.---This judgment will dispose of the following petitions: --
(1) Crl. Miscellaneous No,1632-CB of 2006 (Rana Muhammad Ayub v. Rana Abdul Rehman and another);
(2) Crl. Miscellaneous No,1773-CB of 2006 (Muhammad Muslim Pervaiz v. Shahid and another);
(3) Crl. Miscellaneous No,3056-CB of 2006 (Asif Shahzad v. The State and another );
(4) Crl. Miscellaneous No,3084-CB of 2006 (Muhammad Riaz Virk v. Abdul Khaliq Shahid and another);
(5) Crl. Miscellaneous No,3088-CB of 2006 (Iqbal Butt v. Abdul Hakim Fakhri and 2 others);
(6) Crl. Miscellaneous No,1110-CB of 2006 (Haji Waheed Ahmad v. Abdul Rasheed and another); and
(7) Crl. Miscellaneous No,2699-B of 2006 (Sohail Akram v. State);
2. All these cases involve a common question pertaining to section 489-F of the Pakistan Penal Code.
3. Through Crl. Miscellaneous No,2699-B of 2006, petitioner Sohail Akram is asking for his post- arrest bail, while through the rest of the Crl. Miscellaneous, the petitioners are asking for cancellation of bail already granted to the respondents by the Courts below.
4. In all these cases cheques were issued and these were dishonoured. The maximum sentence involved in these cases does not fall under the prohibitory clause because it is three years. There is no cavil with this.
5. The question which arises for determination is with respect to the scope of section 489-F of the Pakistan Penal Code. It has become extremely important to determine this scope in view of the upsurge of cases relating to section 489-F of the Pakistan Penal Code and the arising confusion.
We have two judgments already on the subject. One of which is given by my learned brother Syed Shabbar Raza Rizvi, J., in the case of Major (R) Ijaz Ahmad Bhatti v. The State and 3 others 2005 PCr.LJ 1462. Here the question was whether section 489-F of P.P.C. Was on the statute book or not?.
The answer was given in the following words in paragraph Nos.9 to 11 of the judgment and these read as follows:-- "9. Section 489-F, P.P.C. Of Ordinance LXXXV, 2002 would remain protected by Article 5(1) of Order 9 of 1999 dated 15-11-1999 and the Constitution (17th Amendment) Act, 2003 which was gazetted on 31-12-2003. Under the said Act, Constitution was further amended. Likewise, Article 270AA of the 17th Amendment Act, the proclamation of emergency of the 14th of October, 1999 and all President Orders including all other laws made between the 12th day of October, 1999 and the date on which this Article comes into force (31-12-2003) are accordingly affirmed, adopted and declared to have been validly made by the competent authority notwithstanding anything contained in the constitution.
10. Even otherwise, the consistent view of the Superior Courts of the country is that law should be saved rather than destroyed and Courts must lean in favour of upholding the constitutionality of the legislation, Dr. Tariq Nawaz v. Government of Pakistan 2000 SCM R 1956.
11. In view of the above discussion and constitutional position, both Writ Petition No,3465 of 2005 (Major Retd. Ijaz Ahmad Bhatti v. State) and Writ Petition No,7261 of 2005 (Qureshi Abdur Raud v.
D.P.O. Etc.) are dismissed, the section 489-F, P.P.C. Is declared as valid and a living law."
6. A similar question as was dealt by my learned brother Syed Shabbar Raza Rizvi, J., was also before my learned brother Muhammad Farrukh Mahmud, J., and he also decided likewise holding that section 489-F, P.P.C., was already on the statute book. Reference in this connection may be made to the case of Abdul Rehman v. S.H.O., Police Station Kot Sumaba. Rahim Yar Khan and another 2006 PCr.LJ 157.
7. Section 489-F of the Pakistan Penal Code reads as follows:-- "Dishonesty issuing a cheque:--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
8. This was not previously on the statute book but was introduced through the Criminal Law Reforms Ordinance of 25-10-2002.
9. This provision of law in fact was not the result of an original thought but was borrowed from the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was subsequently repealed after the process of Islamization by the new law which is called as the Recovery of Finances Ordinance, 2001.
10. If we advert to the previous law of 1997, we find a definition given of loan in its section 2(f) which reads as follows:-- "Loan means a loan, advance and credit under a system based on interest and includes:---
(i) An advance, cash credit, overdraft, packing credit; a bill discounted and purchased or any other financial accommodation provided by a banking company to a borrower;
(ii) A guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower;
(iii) A benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted;
(iv) Any amount due from a borrower to a banking company under a decree passed by a Civil Court or any award given by an arbitrator; and
(v) Any loan due from a borrower to a banking company which is the subject-matter of any pending suit, appeal or revision before any Court."
And perhaps this is the only comprehensive definition of loan given in our finance laws.
11. We may also advert to section 20(4) of the Recovery of Finances Ordinance, 2001. It read as follows:-- "20(1)........................
"20(2)........................
"20(3)........................
"20(4) Whoever dishonestly issues a cheque towards repayment of a finance or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
12. Keeping section 489-F of the P.P.C. And section 20(4) of the Recovery of Finances Ordinance, 2001, in juxtaposition, one finds that the provisions of section 489-F of the P.P.C. In fact are borrowed from section 20(4) ibid.
13. Word "dishonestly" has been defined by section 24 of the Pakistan Penal Code which reads as follows:-- "Dishonestly:--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing `dishonestly' ."
14. After the process of Islamization in view of the objections which were raised against the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, there was need for redefining certain words and phrases and so the word "finance" was defined in section 2(d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, as follows:--
(i) An accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark down in price, hire-purchase, equity support, lease, rent-sharing licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika. Moharaba, musawama, istisnah or modaraba certificate, term finance certificate;
(ii) Facility of credit or change cards;
(iii) Facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution;
(iv) A loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution, to a customer;
(v) A benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;
(vi) Any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution."
' Whereas, the word "loan" was not redefined in the new law of 2001 and the word "finance" was used in its place. However, no corresponding change was brought about in section 489-F of the P.P.C. Where the word "loan" continued to exist as in the past.
15. .The word "obligation" is also defined by the Financial Institutions (Recovery of Finances)
Ordinance, 2001, in the following words:--
(i) Any agreement for the repayment or extension of time in repayment of a finance or for its restricting or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and
(ii) Any and all representations, warranties and covenants made by or on behalf of the customer to a financial institution at any stage, including representations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfilment of a promise; and
(iii) All duties imposed on the customer under this Ordinance; and 'rules' means rules made under this Ordinance."
16. The word "loan" in the definition under definition of "finance" as reflected in paragraph 2(d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is to the following effect:--
(iv) A loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other 'financial accommodation provided by a financial institution, to a customer;
(v) A benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;
(vi) Any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution."
17. Consequently and after having visited the definition's of these important words and phrases, the conclusion drawn is that section 489-F, P.P.C. Would only be relevant where in respect of a loan or non-fulfilment of an obligation as defined by the laws mentioned above, a cheque is issued and it gets dishonoured in the way mentioned under section 489-F of the Pakistan Penal Code. It shall not be attracted for any other purpose.
18. The corollary of this would be that the cheques which were issued otherwise than for purposes of repayment of loans or fulfilment of obligation will not be covered by the definition of 489-F, P.P.C.
And this is the sweep of section 489-F of the Pakistan Penal Code.
19. As a result of this, all the petitions asking for cancellation of bail (Crls. Misc. Nos.1632-CB, 1773-CB, 3056-CB, 3084-CB, 3088-CB and 1110-CB of 2006) are dismissed because none of these pertain to the purpose which has already been defined above.
20. And consequently, the petition asking for grant of post-arrest bail (Crl. Misc. No,2699-B of 2006) is allowed provided the petitioner furnishes bail bond in the sum of Rs,25,000 with a surety in the like amount to the satisfaction of the trial Court.