' SH. AZMAT SAEED, J.---In terms of order, dated 16-8-2007 petitioner Iftikhar Akbar was granted ad interim pre-arrest bail by this Court in case F.I.R. No.81, dated 2-6-2007 registered with Police Station Old Kotwali Multan for the offence under section 489-F, P.P.C.
2. The precise allegation against the petitioner is that complainant Muhammad Shafqat Raza engaged in a franchise business with Telenor with huge investment, appointed the petitioner as his accountant. It is the case of the prosecution that in the course of rendition of accounts on 20-3- 2007 shortfall of the amount of Rs.17,00,000 was detected, in lieu whereof, the petitioner allegedly issued a cheque, which on its presentation was dishonoured by the bank concerned.
3. Learned counsel for the petitioner vehemently contends that it is a classic case for false implication due to malice and business rivalry for petitioner's having relinquished job with the complainant's franchise. Adds that petitioner victimization ensued much prior to the lodging of instant F.I.R. By involving him in yet an other concocted criminal case along with his new employer namely Sohail Ashraf vide F.I.R. No. 186, dated 19-5-2007 PS Sadar Lodran under section 381, P.P.C. It is sserted that in consequence of severe torture, petitioner was coaxed to hand over the questioned cheque to the police so as to be made basis for the present criminal case. Adds that this fact finds mention in the order of the Area Magistrate, dated 23-5-2007. It was next asserted that petitioner also filed a civil suit and injunctive order for encashment of the cheque has been issued. Learned counsel next says that brother of the petitioner was abducted and detained by a police functionary, and recovered after 5 days on account of the intervention of the higher police functionaries, whereafter, an application under section 22-A, Cr.P.C. Is stated to have been moved before the ex officio Justice of Peace. To substantiate his assertions, learned counsel relies on 2007 PCr.LJ 1064 Talib Hussain v. The State, 2005 PCr.LJ 1773 Ali Murtaza v. The State 2007 YLR 1495 Ghulam Qadir v. The State 2007 YLR 1810 and Shahid Aziz v. The State.
4. Whereas learned counsel for the complainant vehemently opposes the grant of bail reiterating that petitioner is involved in a serious crime for having embezzled and deprived the complainant of huge amount, hence, he does not deserve any discretionary relief at this stage. To supplement his assertions, relies on 2006 YLR 3043 Muhammad Nadeem v. The State 2006 YLR 3013 Mehmood ul Hassan v. The State and 2006 M LD 1661 Liaqat Hussain v. The State.
5. I have considered the arguments raised by the learned counsel for the parties and salient features emerging from the facts and circumstances of the case.
6. Mere issuance of a cheque which is subsequently dishonoured does not constitute an offence under section 489-F, P.P.C. A bare perusal of the said provision makes it clear and obvious that such cheque must be issued dishonestly and for the repayment of a loan or the fulfilment of an obligation. In the instant case, prima facie, the cheque was issued while the petitioner was admittedly in police custody in connection with an other F.I.R. Got registered at the behest of present complainant. Thus, the question would obviously arise whether an act committed by a person while in police custody could be deemed to be honest or dishonest. Furthermore, it also needs to be examined, whether in the facts and circumstances of the case, petitioner is entitled to the benefit of the exception as set forth in section 94; P.P.C.
7. There can be no escape from the fact that section 489-F, P.P.C. Nor any other provision of the P.P.C. Can be employed or used as a tool for effecting the recovery of a financial claim. Such is the exclusive jurisdiction of the Court of civil jurisdiction and to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by a party would amount to abuse of the process of law. In the instance case, special summary procedure for recovery of amount due under a negotiable instrument including a cheque is already provided under Order XXXVII, C.P.C.
8. The legislature in its greater wisdom has only prescribed punishment of three years for an offence under section 489-F, P.P.C. Which is well short of the quantum of punishment attracting the prohibitory clause of section 497, Cr.P.C. Thus, the principles that bail is to be granted in cases where the prohibitory clause is not attracted is a rule and denial thereof an exception would also apply to the offence under section 489-F, P.P.C. To hold otherwise, merely because the offence under such provision was financial in nature does not appear to be plausible. Firstly, where the legislature even in the matters of financial nature chose to place the offence within the mischief of the prohibitory clause of section 497, Cr.P.C., the legislature provided the requisite quantum of punishment e.g. 409, P.P.C. Furthermore, to treat the offence under section 489-F, P.P.C. On a different footing to other offences in the same Code with the same punishment for purposes of the grant of bail would amount to reading something into the provision which does not exist. This course of action is also not permissible in law.
9. In the instant case, mala fides of the police and the complainant are not only floating on the surface but leaping therefrom. It is a matter of record that petitioner was arrested and was in police custody in connection with an other F.I.R. Got registered by the complainant. It was during the course of said incarceration in the police station when and where the cheque in question was procured. Petitioner on being produced before the Area Magistrate while still in custody disclosed the fact that the cheque had been obtained from him during the course of his confinement at the police station as is apparent from the order of the Magistrate, dated 23-5-2005. In addition thereto, brother of the petitioner was also illegally detained who had to be recovered through judicial process. From the aforesaid, it is clear and obvious that police acted in a mala fide manner by allowing themselves to act as recovery agent of the complainant, rather than servants of the State enjoined to uphold the law.
10. The upshot of the above discussion is that there are numerous unanswered questions of fact and law pertaining to the alleged commission of offence and prima facie local police acted in a mala fide manner. Offence does not fall within the prohibitory clause. No recovery D is to be effected from the petitioner as the only article to be recovered i.e., the cheque is already available with the investigating agency.
11. For the foregoing facts and reasons, and in line with this Court's order, dated 16-8-2007, I hereby confirm petitioners' ad interim pre- E arrest bail subject to his furnishing fresh bail bonds in the sum of Rs.10,00,000 (ten lacs) with two. Sureties each in the like amount, to the satisfaction of the trial Court.