MUHAMMAD YOUNIS THAHEEM, J:- Having unsuccessful in obtaining bail from the two courts below the accused/ petitioner Nauman Qureshi, involved in case F.I.R No.353, dated 30.06.2014 under sections 489-F PPC, Police Station Cantt, Bannu, has come to this Court, through counsel, for the same relief.
2. Precisely stated, facts of the prosecution case as per the contents of F.I.R registered on the basis of written complaint of one Molvi Abdul Ghafar Qureshi are to the effect that accused/ petitioner Nouman Qureshi was Chief Executive N.E Associates Islamabad, has business terms with him, due to which the petitioner was debted to the tune of rupees five Cror and for payment of the same he tried to put the task tomorrow, but lastly on 01.12.2013 issued a cheque bearing No.0234133 of United Bank Melody Branch to the complainant, which on its presentation was dishonored.
3 Arguments heard and record perused.
4. Perusal of the record reveals that case was reported to the local police with delay of six months from the handing over the cheque to the complainant and one month after its dishonor. Further after registration of the case on 30.06.2014 the accused/ petitioner was brought from central Jail Adiyala on 23.07.2011 to Police Station Cantt: Bannu, and since then the petitioner is behind the bars, such delay creates doubt on the veracity of the prosecution story. Ref. "Mustansar Yousaf Sukhera Vs the State", (2010 YKR 624 Lahore)
5. Moreover, the amount covered by the cheque was paid by the complainant to the petitioner from time to time for the purposes of the business and it is for the return of such amount and there is no evidence available with the complainant as to how, when and by what process various amounts were paid to the petitioner for business purpose. The matter between the parties is of civil nature and when the business transaction is admitted, as in the instant case, the Courts normally allow bail in such like cases. Reliance is place on case titled "Muhammad Akbar Vs the State" (2005 PCr.LJ 677), wherein it is held: "6. From the perusal of the record, it reveals that it is a case of business dealing and transaction between the petitioner and the complainant; therefore, the matter between the petitioner and the complainant is that of civil nature. Moreover, the offence against the petitioner does not fall within the prohibitory clause. The maximum punishment provided for the offence is three years whereas the petitioner is behind the bars for the last fourteen months and there is no progress in the trial and the continued custody of the petitioner is not likely to serve any beneficial purpose rather same would amount to punishment before conviction, which is not permissible under the criminal jurisprudence. Moreover, where the business transactions are admitted the Courts have allowed bail and in this regard, reliance is placed on the cases of Muhammad Akbar v. The State 2005 PCr.LJ 677, Rana Ehsan v. The State 2004 YLR 2675, Major Anwar-ul-Haq v. The State PLD 2005 Lah.
607 and Haq Nawaz Khan v. The State 2006 YLR 50."
In similar situation, the Hon'ble Supreme Court in a recent judgment "Muhammad Sarfaraz Vs The state (2014 SCMR 1032) held in unambiguous words as: "The complainant however alleges that this was a 'self cheque' and therefore, it was issued to him and accordingly the dishonouring of the cheque would attract the provisions of section 489-F, P.P.C. He has also mentioned that the amount covered by the cheque was paid by the complainant to the petitioner from time to time for the purposes of the business and it is for the return of such amount. Contrarily, on further query, there is no evidence available with the complainant as to how, when and by what process various amounts were paid to the petitioner for business purposes. To that end, these aspects of the matter have not been taken into consideration by the learned High Court while declining bail to the petitioner. We find these contours of the case to be quite conspicuous and relevant entitling the petitioner to bail when the case does not fall within the prohibitory clause and the maximum sentence for the offence under section 489-F, P.P.C. is three years. At the same time, the petitioner is behind the bars for the last about six months."
6. Further, it is yet to be established during the trial that as to whether the cheque in question was bounced/ dishonored due to the fault of the bank concerned or of the accused/ petitioner, which makes case of accused / petitioner of further probe and inquiry under section 497 (2) Cr.PC. The intent of legislation to enact section 489-F is to penalize a person who knowingly issue a cheque that it would be dishonoured, which fact can only be ascertained by recording evidence during trial, hence, it requires further inquiry.
Reliance may be placed on case titled "Muhammad Shafiq Vs the State" (2011 P Cr. L J 869 Lahore)
7. Lodging an FIR, does not provide mechanism for its recovery. A cheque is issued keeping in it the value to be paid to payee and for the recovery of the same, suit may be filed under relevant law, while the record reveals that up till now no civil suit for the recovery of same amount has been filed, hence, element of blackmailing on the part of complainant could not be ruled out.
8. The offence with which the accused/ petitioner is charged does not fall within the prohibitory clause of section 497 (1) Cr.PC as the maximum punishment is three years or fine or both and in such cases bail is rule, while refusal is exception. As is held by their lordship in case titled "Riaz Jafar Natiq Vs Muhammad Nadeem Dar and others (2011 SCMR 1708), wherein it has been held;- "Thus keeping in view the law laid down in the case of "Zafar Iqbal V. Muhammad Anwar and others" (2009 SCMR 1488) ordaining that granting bail must be favourably considered and should only be declined in exceptional cases"
9. Bail can be declined only in extraordinary and exceptional cases, which are to be taken into consideration depending upon each case. In such like cases, which does not fall within prohibitory clause exceptional circumstances may be, i.e. (a) where there is likelihood of abscondance of the accused; (b) whether there is apprehension of the accused tampering with the prosecution evidence; (c) whether there is danger of the offence being repeated if the accused is released on bail; and (d) whether accused is a previous convict, this principle has been enunciated in the judgment of hon'ble Supreme Court in case titled "Subhan Khan Vs. the State" (2002 SCMR 1797).
No exceptional circumstances exist, on the basis of which bail could be declined.
10. It is also one of the important aspect of the case that the offence for which the accused/ petitioner is charged with having lesser punishment and if he remained in jail for longer time and ultimately the prosecution failed to establish guilt against him, long detention in jail would cause loss to the accused/ petitioner and his liberty would be curtailed without any legal justification.
11. The contention of learned counsel for complainant/ respondent that huge amount is involved, suffice it to say that there is no categorization of offence on the basis of amount in PPC, like the other cases, as in Narcotics the offence has been categorized on the basis of quantity of narcotics or in cases of hurt cases, where the offence has been classified on the basis of grievousness of hurt. It does not make any difference, whether cheque is for the smaller amount or huge. Upon dishonor of cheque mischief of section 489-F is attracted, which does not fall within the prohibitory clause. On this point reliance can be placed on case tiled "Raja Mumtaz Hussain Arif Vs State" PLJ 2009 Cr.C (Islamabad) 1070.
12. Furthermore, neither there is past history of involvement of the accused/ petitioner nor accused/ petitioner has made any confession. Investigation against the accused/ petitioner is complete and he is no more required to the local police for further investigation and as per settled principles of law, bail cannot be withheld as punishment, when accused/ petitioner is otherwise entitled to the concession of bail and thus further detention of the accused/ petitioner in jail would serve no useful purpose.
13. I am inclined to grant bail to the accused/ narrated hereinabove. These are the reasons of my short order dated 13.12.205, which is reproduced as under:-- "For the detailed reasons to be recorded later on, petitioner Nouman Qureshi is admitted to bail in case F.I.R No. 353 dated 30.06.2014, registered under section 489-F PPC at Police Station Cantt.
District Bannu provided he furnishes bail bonds amounting to Rs.200000/- (Two Lacs) with two sureties each in the like amount to the satisfaction of Illaqa/ judicial Magistrate concerned."