' SYED SHABBAR RAZA RIZVI, J.---The learned counsel seeks post-arrest bail of petitioner in F.I.R.
No,230/08 which stands registered under section 489-F, P.P.C. At Police Station City Sargodha.
2. Briefly, according to the F.I.R the complainant had bought 10 plots in a housing scheme known as "Green City" near new Airport, Islamabad. The complainant had paid the price of Rs,1,33,00,000 to the company administering the housing scheme known as Green Field Development Private Limited Company. However, later on complainant needed money, therefore, requested for refund of his money. Subsequently, on application of the complainant for refund, the petitioner who was Secretary of the Company approved his application and referred the same to the co-accused, Chief Executive Raja Asif. Both the accused after deducting 20% out of total amount, issued complainant a cheque No, 7231386 of Standard Chartered Bank Islamabad dated 25-3-2007 of Rs,1,64,00,000. However, it was made clear by the accused persons that the cheque was post- dated i.e, 1-4-2008. When the cheque was presented to the Bank. Same was dishonoured by the Bank in the presence of witnesses mentioned in the F.I.R.
3. The learned counsel for the petitioner submitted that the present F.I.R. Had been manoeuvred by co-accused Raja Asif in collusion with complainant who is mala fidely acting on his behalf.
According to him, co-accused is an ex-brother in law of the petitioner and also an accused of murder of his real brother for which F.I.R. No,15, dated 13-1-2006 at P.S. Fateh Jhang was registered.
He added that a private complaint under sections 302, 109, 34, 201 and 221, P.P.C. Is also pending against co accused in the Court of Judicial Magistrate, Fateh Jhang, which was filed on 13-2-2007.
4. The learned counsel for the petitioner vehemently contended that petitioner never issued or signed the cheque mentioned in the F.I.R. The learned counsel referred to a copy of application which was filed by co-accused Raja Asif for seeking bail in the same case before the learned Sessions Judge, Sargodha. In Para.3, it was contended that the co-accused and petitioner were Director and Share-holders in the above mentioned scheme but they separated on 2-4-2007 and it was settled between them that after the above mentioned date co-accused, Raja Asif would be responsible for all transactions regarding the above mentioned company. According to the learned counsel for the petitioner, the registration of the instant case had been manoeuvred by co-accused to put him under pressure to forego or compromise the murder of petitioner's brother.
The emphasis of the learned counsel for the petitioner is that after murder of his real brother by the co-accused Raja Asif how could he do business with him? The learned counsel submitted that petitioner was arrested on 31-5-2008.
5. On the other hand, the learned Deputy Prosecutor-General Punjab contended that the cheque was dishonestly issued by co-accused Raja Asif and petitioner; petitioner was Secretary of the company; the cheque was handed over postdated i.e, 1-4-2008; the cheque was dishonoured on 9-5-2008 followed by registration of F.I.R. On 20-5-2008, therefore, date given in Para-3 of Annex-D does not affect veracity of the present F.I.R. The learned counsel for the complainant generally endorsed the contentions of the learned Deputy Prosecutor General and added that petitioner had dishonestly issued the cheque and also caused huge loss to the complainant, therefore, this bail application deserves to be dismissed.
6. I have considered the above contentions minutely. I have seriously focused my attention upon the different development hinted at by the learned Deputy Prosecutor-General. The learned Deputy Prosecutor-General pointed out that according to the F.I.R. Cheque mentioned in the F.I.R. Was issued by petitioner and co-accused on 25-3-2007 with request that it was a post dated cheque dated 1-4-2008. According to him, until 25-3-2007 there was no dispute between the petitioner and co-accused and they were working together. Dispute according to him arose on or after 2-4-2007 as mentioned in the application of the co-accused (Annex-D) which he had filed before the learned Sessions Judge, Sargodha, for bail in the instant case. Apparently, the point raised by the learned Deputy Prosecutor-General seemed convincing but after going through the record it proved otherwise. F.I.R. No,15, dated 13-1-2006 at P.S. Fateh Jhang, District Attock shows that the murder of real brother of the present petitioner, Muhammad Shaukat had taken place on 13-1- 2006, much before date mentioned in Annex-D i.e, 2-4-2007. When co-accused was declared innocent in the said F.I.R. The petitioner filed a private complaint against the co-accused on 13-2- 2007 which was also prior to date mentioned in the instant F.I.R. i.e, when the cheque was handed over to the complainant i.e, 25-3-2007, and date mentioned in the Annex-D i.e, 2-4-2007. Therefore, in the context of the instant F.I.R. Or dates mentioned therein 25-3-2007 and 1-4-2008, we must take into consideration dates, of occurrence of murder of petitioner's brother 13-1-2006 and filing of private complaint, 13-2-2007. The enmity of murder had taken place between petitioner and co- accused, Raja Asif in year 2006. In my humble view in such an environment it was just impossible for petitioner to work with Raja Asif, co-accused of the instant F.I.R. And that fact cast serious doubts on the veracity of the instant F.I.R. The F.I.R. Itself says that complainant "got" 10 plots from the company. Complainant does not say that he had bought 10 plots from the company.
Furthermore, according to the complainant, he "needed" some money, therefore, he requested the company for "refund". In housing schemes, plots are "bought" and "sold" which words are not used in the F.I.R. Strangely.
7. The petitioner during the course of investigation refused to concede that he had dishonestly issued the disputed cheque yet the Investigating Officer did not bother to A get verification of his signatures upon the cheque. In such circumstances expert opinion is normally required. But this aspect of investigation was totally ignored by the Investigating Officer.
8. Nevertheless, and in addition to the above, the offence under section 489-F, P.P.C. Provides maximum punishment of three years, hence not covered by the prohibitory clause of section 497, Cr.P.C. The offence under section 489-F, P.P.C. Has not been categorized like many other offences under the Pakistan Penal Code. For example, hurt cases or injury cases are divided into different categories. Each category or kind of injury provides different sentence proportionate to the seriousness of injury/hurt, whereas, such classification is not provided under section 489.F, P.P.C. It appears that a cheque has- been dishonestly issued, towards repayment of a loan or fulfilment of an obligation, which is dishonoured on presentation, the mischief of section 489-F, P.P.C. Is attracted. It is an offence not falling within the prohibitory clause irrespective of amount mentioned in the F.I.R. Granting of bail in such like cases is rule and refusal is an exception. It does not make any difference whether the cheque is of a smaller amount or a huge amount. Punishment under section 489-F, P.P.C. Is maximum 3 years disregarding amount mentioned in the dishonoured cheque. Thus the fact that petitioner has, allegedly, C committed an offence which provides maximum punishment of three years and not covered by the prohibitory clause of section 497, Cr.P.C. This application is allowed.
9. In view of the above discussion and reasons, this bail application is accepted subject to petitioner's furnishing surety bonds in the sum of Rs,200,000 with one surety in the like amount to the satisfaction of the trial Court or Area Magistrate.