Mrs. Hina Adil wife of Adil Bashir Ahmad, partner in Lahore Diagnostics Centre (petitioner), who stands involved in two cases bearing F.I.R. Nos, 974 & 975, dated 17.11.2008, registered with Police Station Defence-A. Lahore for an offence under Section 489-F P.P.C., by filing Crl. Misc. Nos, 1281/B and 1284/B of 2009, respectively, has sought pre-arrest bail in both the cases. I propose to dispose of both these petition together through this single order, as similar questions of facts and law are involved therein.
2. According to the contents of both the F.I.Rs, , the petitioner issued two cheques bearing Nos 20684075 and 20684076 dated 28.4.2008, for an amount of Rs, 27,14,000/- and Rs, 24,20,000/- in favour of Saeed Ahmad Jabal and Sarfraz Ahmad Jabal, the complainant of the aforesaid F.I.Rs,, respectively to be drawn on Habib Metropolitan Bank, Z-Block Branch, DHA, Lahore, which were dishonoured on 27.10.2008, when they were presented to the Bank. Accordingly above said cases were registered against the present petitioner.
3. Learned counsel for the petitioner argues that the petitioner and the complainants of both the F.I.Rs, who are real brothers inter-se, became partners vide Partnership Deed, dated 26.11.2007 in order to run and manage a CT Scan Centre in the name and style of M/s Lahore Diagnostics Centre (partnership concern) and other businesses of like nature; that the same was further amended on 27.10.2008 vide Addendum; that Procurement Deed dated 27.1.2008, Personal Guarantee dated 22.1.2008 and Financing Agreement dated 26.11.2007 were also executed between the partners regarding total equity, investment, mode of sale/purchase and other terms and conditions were settled; that according to the terms and conditions of the Partnership Deed, profit and loss amongst the partners out of partnership concern i,e, LDC were to be divided as under:--
(i) Mrs. Hina Adil, 20%
(ii) Mr. Saeed Ahmad Jabal, 47%
(iii) Mr. Sarfraz Ahmad Jabal, 33% Saeed Ahmad Jabal (complainant of case F.I.R. 975/2008) being managing partner of LDC, was authorized to do any act regarding sale/purchase of medical equipment's through imports; he being managing partner and representative of LDC entered into procurement agreement dated 27.1.2008 with Pak Trading House (P.T.H.) to purchase CT Scan Machine for partnership concern i,e, LDC; that the DC was bound to make full payment of 26,320 US dollars to Pak Trading House and on payment of full amount the Pak Trading House was bound to procure, install and to make the system operational within 90 days of the receipt of the full payment; that due to failure on the part of Saeed Ahmad Jabal and Sarfraz Ahmad Jabal (complainants of both the F.I.Rs, ) to make timely payments of funds, CT Scan Machine could not become functional/operational and thus caused delay in timely completion of the project; that after delay of two months from the date of partnership, both the complainants had agreed to arrange some funds in order to import and install the machine on condition of giving the personal guarantee by the petitioner on behalf of supplier i,e,, Pak Trading House, as husband of the petitioner, namely, Mr. Adil Bashir Ahmad was a representative of Pak Trading House; that the petitioner in the best interest of the partnership concern and in order to safeguard her investment in LDC provided personal guarantee; that Pak Trading House supplied CT Scan Machine to LDC, but ii could not be installed due to failure on the part to the complainants to arrange the funds; that due to breach of partnership/finance/procurement/personal guarantee -agreements on the part of the complainants, the petitioner demanded payment from them and instead of fulfilling their part of the agreements or making payment, the complainants lodged the present FJ.Rs, in order to pressurize, blackmail, harass and humiliate her so that she should not take her substantial amount; that the complainants presented the cheques in the Bank in violation of personal guarantee agreement; that when the complainants became guilty of breach of aforesaid agreements, the petitioner filed a civil suit for dissolution of partnership, rendition of accounts and recovery of an amount of Rs, 39,45,000/- which is pending before the Civil Court at Lahore. Learned counsel for the petitioner further states that in view of pendency of civil suit, criminal proceedings cannot be initiated.
4. Conversely, learned Law Officer assisted by learned counsel for the complainant argued that the petitioner is nominated in the F.I.R. with specific role and that execution of the cheques and dishonourment thereof is admitted; that there is no malafide or enmity on part of the complainants or local police. They vehemently contended that the petitioner being a woman is not entitled to get benefit of extraordinary relief of pre-arrest bail as per 3rd Proviso to sub-section (1) of Section 497 Cr.P.C., whereas her case falls within the ambit of financial crime.
5. I have heard the learned counsel for the parties at considerable length and have also gone through the record.
6. Questions involved in the present case are as under:--
(i) whether cheques in question have been issued by the petitioner with dishonest intention or a guarantee?
(ii) whether offence under Section 489-F P.P.C. falls within the ambit of "Financial Corruption"?
(iii) whether woman, who is an accused of Section 489-F.P.P.C., is entitled to bail under second or third Proviso to subsection (1) of Section 497 Cr.P.C.?
Before touching the merits of the case, it will be appropriate to understand words "dishonestly", "loan", "fulfillment of obligation", which have been used in Section 489-F P.P.C., whereas word "financial corruption" has been used in third proviso to Section 497(1) Cr.P.C.
Word "dishonestly" is defined in Section 24 P.P.C., which reads as under:-- "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'."
In the Law Lexicon edited by Justice Y.B Chandrachud, at page 567 "dishonesty" defined as "giving the ordinary meaning the word "dishonestly" means "dishonesty". It further elaborates dishonestly as disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity. Lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness, disposition, to defraud, deceive or astray. In the case Maj. (Retd) Javed Inayat Khan Kiyani v. The State (P.L.D. 2006 Lahore 752), my learned brother Syed Shabbar Raza Rizvi, J., has dealt with this issue in detail in paragraph 11, wherein discussing the comparison between Section 489-F P.P.C. and Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, his lordship observed that language in both the enactments is same. The word "loan" is substituted in Pakistan Penal Code with word "finance".
Similarly, punishment of one year is substituted with three years. "Objective to legislate Section 20(4) of Financial Institutions (If cover of Finances) Ordinance, 2001, was different than objective the, legislate Section 489-F P.P.C., but Section 489-F P.P.C. had not been legislated/drafted differently. Section 489-F P.P.C. has been lifted from Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Purpose of enacting said laws was to provide speedy measures for the recovery of outstanding loans and finances. In case cited above, while confirming pre-arrest bail granted to the accused, this Court defined the word "dishonesty" as under:-- "A person can be said to have dishonest intention if in taking property it is his intention to cause gain, by unlawful means of the property to which the person so gaining is not legally entitled or to cause loss by wrongful means of property to which the person so losing is legally entitled".
7. Learned Additional Sessions Judge has refused bail to the petitioner on the ground that act of the petitioner amounts to financial corruption and she is not entitled to the concession of Women Protection Act, 2006. The word "corruption" has been defined in Black's law Dictionary as "an act done with an intent to give some advantage inconsistent with official duty and the rights of others.
The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others". Word "loan" has neither been defined in Pakistan Penal Code nor in the Financial Institutions (Recovery of Finances) Ordinance, 2001. Word "finance" is defined in Section 2(d)(iv) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. "Finance" also includes "loan", which means, Advance, Cash Credit, Over Draft, Packing Credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer. "Loan" according to Wharton's Law Lexicon is anything lent or given to another on condition of return or payment. The word "obligation" is defined in Oxford Dictionary as the "state of being forced to do something because it is your duty, or because of law" (Oxford Advance Learner's Dictionary 7th Edition, page 1045). According to Law Lexicon, "obligation" means a duty, the bond of legal necessity which binds together two or more determinate individuals, an act which binds a person to some performance, a binding or state of being bound in law; an act by which a person becomes bound to another or for another, or to forbear something etc. (The Law Lexicon edited by Y.V. Chandrachud, page 1335). Similarly word, "obligation" has been defined in Black's Law Dictionary as a legal or moral duty to do or not do something.
8. Offences of "murder", "terrorism" punishable with death, imprisonment for life or imprisonment for 10 years or more are graver and serious in nature and the offence of dishonestly issuing a cheque for fulfillment of an obligation is punishable with imprisonment for three years or fine or both. The Anti-Terrorism Act, 1997 was enacted for prevention of terrorism, sectarian violence and speedy trials of heinous offences and appeals against the final judgments in the said case lie in the High Court, whereas against the judgment in the case under Section 489-F P.P.C., the appeal would lie before the Sessions Court. Offence under Section 489-F P.P.C. was added in the statute book on 25.10.2002 through Criminal Law (Amendment) Ordinance No, LXXXV of 2002. The sole purpose of this provision is to curb fraud and dishonesty, thus, element of fraud and dishonesty has to be established on case to case basis. In my humble view, offence under Section 489-F P.P.C. cannot be equated with the offence of murder or terrorism, which are heinous in nature and graver punishments have been prescribed under the law triable by the Court of Sessions or the Court constituted under the Anti-Terrorism Act, 1997 and the same falls within the prohibitory clause of Section 497(1) Cr.P.C., whereas offence under Section 489-F P.P.C. is only punishable with three years or tine or both and is triable by Magistrate and do not attract the prohibitory clause, hence I am of the view that the offence under Section 489-F P.P.C. does not fall within the ambit of financial corruption, hence, concession of bail cannot be refused to the petitioner, a woman, on this ground.
9. Perusal of various agreements such as personal guarantee partnership deed, procurement agreement, financing agreement prima facie shows that cheques in question were issued during a business dealing between the partners and due to this business relationship, cheques in question were handed over to the complainants. Execution of the cheques has not been denied by the petitioner. It is mentioned in the personal guarantee dated 27.1.2008, executed between the partners i,e, the petitioner and the complainants. As per clause 1 of the guarantee, 1st party i,e, the petitioner has issued cheques as personal guarantee to the 2nd and 3rd party in consideration of the "partnership deed", Funding Agreement, both dated November 26, 2007 and Procurement (Sale/Purchase) Agreement with Pak Trading. The intention of the petitioner regarding issuance of the cheques is evident from the terms and conditions of the personal guarantee dated 22.1.2008, wherein it has been specifically agreed that "upon successful commencement of operations of CT Scan Machine, the post dated cheques in question shall be returned by the complainants to the petitioner. Reference may be made to clause 9 of the Personal Guarantee. It was also provided under clause 7 thereof that the complainants shall not encash the cheques in question if CT Scan Machine is made operational within a period of 90 days from the date of personal guarantee. It was also settled between the partners that time of 90 days period to make CT Scan Machine operational was contingent upon timely payment by the 'complainants to Pak Trading House. It was further provided under clause 8 thereof that in case under any circumstance, 2nd and 3rd parties i,e, the complainants, cash the cheques, they shall cease to be partners in "LDC"
(partnership concern) and the petitioner shall automatically become the sole proprietor of the said firm. These circumstances, prima facie, indicate that cheques in question were not issued in order to deceive the complainants. Same were the issues during business dealing.
In case of Major Anwar-ul-Haq v. The State (P.L.D. 2005 Lahore 607), it was held that rationale behind the enactment of Section 489-F P.P.C. did not call for a mechanical action immediately on return of the cheque by the banker. In the said case, this Court while confirming bail before arrest further held that cheque in question was issued during the course of business relationship between the parties and cheque was issued as a security/guarantee. It has been held in the case of Mazhar Iqbal v. The State (2006 Y.L.R. 406) that in order to attract the provisions of Section 489-F P.P.C. element of dishonesty should have been shown and dishonouring of the cheque would not mean registration of case forthwith in a mechanical way. Thus object of issuance of cheque should not be lightly ignored.
10. Where there is genuine dispute arose from business transaction and contractual obligation, intention of the parties can be gathered from the-nature of the business, relationship, present and past conduct of the parties. In the present case, execution of four agreements including personal guarantee, partnership deed, procurement deed, financing agreement and correspondence between the partners through E-mail of different dates prima-facie show that the cheques were issued by the one partner i,e, the petitioner, to the other partners, i,e, the complainants of both the cases, during business dealing. Prima facie, it does not show the intention of the petitioner to deceive the complainants.
11. As regards mala fide of the complainant, it is evident from the fact that under guarantee agreement, the complainants were not supposed to present the cheques to the Bank, which they have presented in order to harass and damage her reputation. Under this agreement, they were supposed to return the cheques to the petitioner.
12. The petitioner is a woman having two infants, her case does not fall under third proviso to sub- section (1) of Section 497 Cr.P.C. Investigation into the crime has already been completed. Person of the petitioner is no more required and no recovery has to be effected from her. If she is handed over to police, she will suffer humiliation and loss to her reputation. Offence under Section 489-F P.P.C. does not fall within the prohibitory clause of Section 497(1) Cr.P.C. and grant of bail is rule and refusal an exception as held in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34).
13. The petitioner's suit for dissolution of partnership, rendition of accounts and recovery of Rs, 39,45,000/- is pending before the Civil Court at Lahore, and this facts also makes the case of the petitioner one of further inquiry within the meanings of sub-section (2) of Section 497 Cr.P.C. I do not agree with the contention of the petitioner's counsel that the suit is pending regarding the contractual obligation between the parties, criminal proceedings cannot be initiated. It is now well- settled that civil and criminal cases can be proceeded side by side. There is no J bar on the initiation of criminal proceedings in presence of civil suit. I am guided by the Full Bench judgment of this Court reported in case of Muhammad Shafi v. D.S.P. and others (P.L.D. 1992 Lahore 178), Sheikh Ahmad v. Sh. Muhammad Younas (1971 P.Cr.L.J. 331) Rehmat Ullah v. Abdul Aziz (1974 P.Cr.L.J. 54), Malik Muhammad Naeem Awan v. Malik Aleem Majid and 5 others (P.L.D. 2008 Lahore 358) and Mst.
Azra Israr v. Inspector General of Police Punjab and others (P.L.D. 2003 Lahore 1).
13A. In this view of the matter and circumstances of the case, this petition is allowed and the interim anticipatory bail already granted to the petitioner by this Court on 3.2.2009 is hereby confirmed subject to her furnishing fresh bail bonds in the sum of Rs, 25,00,000/- (Rupees twenty five lac) with one surety in the like amount to the satisfaction of learned trial Court in each case.
14. Before parting this order, I would clarify that the observations made hereinabove are tentative in nature and learned trial Court should not be influenced therefrom in any manner.