' SH. NAJAM-UL-HASAN, J.---Through this petition the petitioner has sought pre-arrest bail in case F.I.R. No.285 dated 18-3-2013 registered under section 489-F, P.P.C. At Police Station Allama Iqbal Town, Lahore.
2. The case was registered on the statement of one Mahboob Alam stating therein that he purchased a plot from the company, namely, Green Housing Scheme and paid Rs.3,50,000. Later on plot was not transferred and the matter was settled and a cheque for an amount of Rs.3,50,000 was handed over by the petitioner to the complainant which was issued by one Aleena Aneela Qaisar and same was presented in concerned bank but was dishonoured and as such the case was registered.
3. Learned counsel for the petitioner submits that the petitioner is innocent and has been falsely involved in this case; that the petitioner is not the exclusive owner of the plot and said land was owned by the company which was run by the petitioner and his brother along with one Kausar Ali and amount was received by Kausar Ali and not by the petitioner. Learned counsel further contends that the disputed cheque was neither issued by the petitioner nor was of his bank account rather admittedly same was issued by one Aleena Qaisar and as such ingredients of section 489-F, P.P.C. Are not made out. Prayer for pre-arrest bail has been made.
4. On the other hand, the learned law officer assisted by learned counsel for the complainant submits that the petitioner along with his other partners are involved in this matter and they are defrauding the public. They have received amount and are not handing over the possession of the plot; that the petitioner has deprived the complainant of a huge amount and as such he is not entitled to any exception. The learned law officer submits that cheque was handed over by the petitioner and involvement of the petitioner in this case is evident.
5. I have heard arguments of the learned counsel for the parties and have also gone through the record. Grievance of the complainant voiced through the F.I.R. Was that he purchased a plot from the company, namely, Green Housing Scheme which was being run by the petitioner and others but neither the plot was transferred in his name nor possession was delivered to him, as such he approached the petitioner and the matter was settled between the parties as a result whereof the petitioner handed him over a cheque amounting to Rs.3,50,000 issued by one Aneela Qaiser but the same was dishonoured on presentation. On these premises the police has registered a case under section 489-F, P.P.C. In order to appreciate as to whether the police rightly applied this provision of law or not, the same is reproduced hereunder: ' 489-F. Dishonestly 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."
' A bare perusal of this section would reveal that to constitute an offence under this provision it is mandatory to prove that the accused himself issued the cheque. It was not case of the complainant that the petitioner had issued a cheque rather he stated that the petitioner gave him a cheque issued by one Aneela Qaiser. As mentioned above, section 489-F P.P.C. Is attracted only where the cheque is issued by the accused himself. So in the present case this basic ingredient i.e. "issued" is missing. Here a question arises whether the petitioner has committed no offence? The answer is that "not under this section but under other provisions of Law". For the sake of academic discussion a question comes into mind, "Was it intent of Legislature to bring only those cases within the ambit of section 489-F, P.P.C. Where cheque was issued by the accused himself or whether mere handing over a cheque belonging to someone else's account would also bring the accused liable under this section?" The answer to my mind is that this section applies to those cases only where cheque is issued by the accused himself and not in other cases. This answer/intent has been gathered by me from careful perusal of this very provision of law. In the later part of this section it has been provided that to come out from the rigors of this Section the accused musts show that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault... (Boldness of words and underlining is mine). This part of the provision makes it crystal clear that intention of the Law Maker is that this section would attract only to those cases where the cheque is issued by the accused himself and not in other cases because otherwise word "his" would not have been written and instead word "the" was sufficient. So the most important and basic ingredient to constitute an offence under this section is that the accused must himself issue a cheque. Viewing the matter from this angle I am of the considered opinion that although the petitioner might have cheated/defrauded the complainant or have committed breach of trust and thus deprived him of huge amount even then section 489- F, P.P.C. Is not attracted to the facts and circumstances of the present case. Nothing has been brought on record and thus cannot be said with certainty that the cheque was ever handed over by the petitioner to the complainant. Mere assertion of the complainant is not sufficient to connect the petitioner with the cheque. Till date no other provision of law has been applied against the petitioner. So presently the petitioner has made out a case for bail. Consequently, this petition is C accepted and ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. If during investigation other provisions of law are applied by the investigator then the complainant would be well within his right to apply for cancellation of his bail.