The petitioner Muhammad Mashkoor Khan son of Mir Akbar Khan has sought post arrest bail in case, F.I.R.
No.359, dated 30-07-2020, registered under Section 489-F , Pakistan Penal Code, 1860 (hereinafter referred to as "PPC") at Police Station Industrial Area, Islamabad.
2. The learned counsel for the petitioner contends that maximum punishment for the office under Section 489-F PPC is three years which does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. and consequently bail is to be granted as a rule and refusal is an exception; that the dispute regarding payments is a business dispute between the parties, involving a controversy regarding alleged facts by the parties, and is to be determined during trial proceedings; that Section 489-F PPC is not to be mechanically applied ; that the petitioner is behind the bars for more than a month and his further incarceration would not serve any purpose to the prosecution; that it is settled law that recovery ought to be made through Civil Proceedings under Order XXXVII of the CPC and that the bail should not be withheld as punishment. He relies on PLD 1995 SC 34, 2011 SCMR 870, 2019 P .Cr.LJ 295 and PLD 2005 Lahore 607.
3. Learned counsel for the complainant submits, on the other hand, that initially an FIR No.61/2019, dated 19.06.2019 was registered under Section 489-F PPC and that the petitioner was released on bail and subsequently acquitted pursuant to a compromise wherein he had agreed to make repayments and issued cheques for such purpose; that the said cheques were then dishonored which led to registration of present FIR in which the petitioner has been arrested; that the petitioner issued the cheques with dishonest intent and that the petitioner also misbehaved with the police at the time of arrest and history in the case in FIR No.61/2019 shows that there is admission on his part that he owes the alleged amount to the petitioner . In support of his contention, learned counsel relies upon the case laws reported as 1987 MLD 1376 , 1969 SCMR 564, 2008 YLR 1563 , 2009 SCMR 174, 2014 YLR 372 and 2002 SCMR 442 .
4. Learned State Counsel agrees with the submissions of the learned counsel for the complainant that Section 489- F PPC cannot be used for recovery of money . He, however , opposes the bail on the ground that the petitioner has failed to make out grounds for post arrest bail as he had agreed to the schedule of repayment and then defaulted by not making such payments which shows his dishonest intent.
5. The learned counsel for the petitioner in rebuttal states that the petitioner had made repayments to the complainant and the cheques were issued only as guarantee.
6. I have heard the arguments and reviewed the file.
7. The law on bail has been enumerated by the august Supreme Court in "Tariq Bashir and others vs. The State" [PLD 1995 SC 34], wherein it is held that "in bailable offences the grant of bail is a right and not favour , whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-
(a) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the of fence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
8. The same principles have been reiterated in "Muhammad Tanveer vs. The State and another" [PLD 2017 S.C 733], wherein it is held that "once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Court s throughout the country including the Special Tribunals and Special Courts."
9. The august Supreme Court reaffirmed and reiterated the principles as laid down in "Subhan Khan Versus the State" (2002 SCMR 1797 ) and "Tariq Bashir and five other vs. The State" (PLD 1995 SC 34). The said principles have been consistently followed. Reliance may also be placed on the case of "Riaz Jafar Natiq Vs. Muhammad Nadeem Dar and others" (2011 SCMR 1708 ), "Abdul Hafeez vs. The State" [2016 SCMR 1439 ], "Dr. Abdul Rauf Vs. The State" [ 2020 SCMR 1258 ] and "Muhammad Ramzan vs. State" [ 2020 SCMR 717 ]
10. It has been held by this Court in case titled "Muhammad Irfan vs. The State, etc." [2015 PCr.LJ 129 Islamabad] that "section 489-F of PPC is not a provision which is intended by the legislature to be used for recovery of an alleged amount. It is only to determine the guilt of a criminal act, and award a sentence, fine or both as provided under Section 489-F PPC. On the other hand, for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of CPC."
11. It is settled law that Section 489-F PPC does not fall within the prohibitory clause and that the Court ought to consider the grant of bail favourably and its refusal is to remain an exception. This Court can only take a tentative view of the matter and cannot presume dishonesty on part of the petitioner as any such determination would prejudice his right to a fair trial guaranteed by Article 10A of the Constitution. I do not find that there exist exceptional circumstances that support denial of bail pending trial and keeping the petitioner incarcerated, as he is not required for investigation, cannot tamper with the record, and it is no body' s case that he is a plight risk.
12. In view of the above, this petition is allowed and the petitioner is admitted to bail, subject to furnishing bail bonds in the sum of Rs.10,000/- (Rupees Ten Thousand) with one surety in the like amount to the satisfaction of the learned Trial Court.