SHEZADA MAZHAR, J.---The petitioner Asim Ali Khan, in the present case has filed his post arrest bail in case F.I.R. No.740/2012 dated 2-12-2012, offence under section 489-F, P.P.C., registered at Police Station, Haji Pura, District Sialkot.
2. According to the F.I.R., the allegation levelled against the petitioner is that petitioner purchased leather from the complainant and for the repayment of outstanding amount, issued nine cheques in favour of the complainant which were dishonoured on presentation before the concerned bank. Hence, this F.I.R.
3. Learned counsel for the petitioner submits that the cheques were given in a business transaction as guarantee, therefore, ingredients of section 489-F, P.P.C., are not attracted in the present case.
The petitioner has filed a civil suit regarding the cheques as well as the alleged agreement on the basis of which said cheques were issued and the suit is pending before the learned Civil Judge; that the petitioner is innocent and has been roped in this case with mala fide intention; that the crime report has been lodged with inordinate delay of 5/6 months; that the cheques were presented after about 4/5 months that too with complainant's own handwriting, which further strengthen the case of the petitioner that the said cheques were given as guarantee; that there is civil dispute between the petitioner and complainant and bare reading of F.I.R. Reveals that no independent witness was cited by the complainant in this case; that the petitioner has falsely been involved in connivance of the complainant with the police while twisting the actual facts and circumstances of the case. The offence does not fall within the domain of prohibitory clause of section 497(1) Cr.P.0 and in such like cases grant of bail is a rule while refusal is an exception. Learned counsel for the petitioner relies on 2011 PCr.LJ 869 (Muhammad Shafiq v.
The State), PLJ 2011 Cr. C. 1087 (Muhammad Jameel v. The State and another), 2011 SCM R 1708 (Riaz Jafar Natiq v. Muhammad Nadeem Dar and others) and 2008 M LD 159 (Iftikhar Akbar v. The State) in support of his contentions.
4. The learned D.P.G. While opposing the instant petition submitted that neither the issuance of cheques by the petitioner nor signatures thereupon have been denied by the petitioner. The cheques were issued by the complainant to clear the liability of Rs.67,00,000 the said liability falls under the "obligation" and section 489-F, P.P.C., fully attracts. The mala fide of the petitioner is obvious from the facts that all the nine cheques were dishonoured and not even one was enchased. Further submitted that challan has been submitted and regarding the civil suit, learned Deputy Prosecutor General submitted that no document is available on the record to show that any civil suit has been filed in this regard. Further submits that statements recoded under section 161 Cr.P.0 available on record corroborate the stance of the complainant. The petitioner has not denied the issuance of cheques which were given towards the fulfillment of an obligation and the same were dishonoured due to insufficient funds. Further submits that petitioner is not entitled for the grant of bail.
5. No one has entered appearance on behalf of the complainant despite his personal service.
6. Arguments heard. Record perused.
7. Although the petitioner is named in the F.I.R., however, there is delay of more than 5 months in lodging the F.I.R. Which goes unexplained on the part of the prosecution. There is no denial to this fact that relationship between petitioner and complainant is of seller and purchaser. There is dispute between the parties about adjustment of liability and complainant himself has failed to mention the dates on which the leather was purchased by the petitioner and when they settled the liability. Prima facie the matter seems to be of civil nature and for A this purpose the complainant has proper remedy to file a suit for recovery or rendition of accounts before the court of competent jurisdiction. As to whether the cheques were issued towards the fulfillment of "obligation" or as "security" will be seen by the learned trial court after recording of evidence. Maximum sentence of offence against the petitioner is not more than three years as such the same is not covered under subsection (1) of section 497, Cr.P.C. The petitioner is behind the bars for the last eight months.
Investigation being complete, his corpus is no more required by the police and as such no useful purpose would be served by his further detention in jail. The petitioner is no more required for any further investigation. So relying on 2011 SCM R 1708 (Riaz Jafar Natiq v. Muhammad Nadeem Dar and others) the petitioner has made out a case for grant of bail. In 2011 PCr.LJ 869 (Muhammad Shafiq v. The State) it has been held that:-- "Offence under section 489-F, P.P.C. Enacted to penalize a person who knowingly issue cheuqe that it would be dishonou red, it is not a mechanism provided for the recovery of any am ount on the basis of cheques which are negotiable instrum ents"
8. Thus keeping in view the law laid down in the case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCM R 1488) ordaining that where a case falls within non-prohibitory clause the concession of granting bail must be favourably considered and should only be declined in exceptional case. I do not find this to be a case where it should be declined/refused as an exception.
9. In sequel to what has been discussed above, the instant petition is accepted as a consequence whereof, the petitioner is admitted to bail after arre t subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial court. not infl The observation made above are tentative in nature which shall uence the mind of the Court at the time of conclusion of trial.