This is post-arrest bail petition by accused-petitioner (Shabbir Ahmad Hussain) in F.I.R. No. 16, dated 08.01.2021, under Section 489-F P .P.C. Police Station Tarnol, Islamabad.
2. According to the allegations, set-forth in the F.I.R, in order to make payment of outstanding amount against the material purchased, petitioner issued cheque worth Rs. 26, 43,200/- which, on presentation, stood dishonoured by the concerned bank.
3. Learned counsel for the petitioner contends that the cheque-in-question was not given to the respondent No.2 (complainant) as the agreement, available at page-17 had been inter se the brother of the complainant and the petitioner who did not lodge any complaint; that arrest of the petitioner is tainted with malafide as payment has already been made, receipts whereof are available on file at Page-19 to 22; that after making full payment, complainant used to delay the matter qua return of the original cheque on one or the other pretext and lastly alleged to have lost the same; that the malafide is established from the fact that original cheque has not been annexed with the challan rather photocop y of the same was taken into possession through a recovery memo; that the offence does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C; that petitioner is behind bars since 21.01.2021; that investigation has been completed and that bail cannot be withheld as punishment, therefore, petitioner is entitled to the concession of post-arrest bail.
4. On the other hand, learned counsel for the complainant argued that cheque was issued in the name of the Company while complainant being one of its Directors lodged the instant F.I.R, therefore, there is no significance of the submission that the petitioner had business dealing with brother of the complainant who did not lodge F.I.R; that the referred receipts are in respect of payment of Rs. 1-million while the remaining amount is still outstanding and that the cheque was issued with dishonest intention and was not a guarantee cheque, therefore, petitioner is not entitled to the concession of bail. Learned counsel placed reliance upon case laws reported as 2018 MLD 1521 (Sindh), 2018 YLR 338 (Sindh), 2018 MLD 273 (Peshawar) and 2016 MLD 1450 (Peshawar).
5. Learned State Counsel adopted the arguments advance by learned counsel for the complainant while the Investigating Officer, on being questioned, apprised that the challan was submitted on 24.01.2021; that petitioner retains no previous record and no more required for further investigation.
6. Arguments heard, record perused.
7. Admittedly , petitioner is behind the bars for the last more than two months in an offence which entails punishment up to three years, which does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. No improvement in the investigation is expected if petitioner remains in jail. Guidance is sought from the recent judgment pronounced by the Hon'ble Supreme Court of Pakistan reported as "Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhawa and others" ( 2020 SCMR 1268 ), wherein it is held that:- "Substantial amounts notwithstanding, nonetheless, offence complained is punishable for three years imprisonment or fine or with both and as such does not attract the statutory bar. Petitioners continuous detention is not likely to improve upon investigation process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment."
8. Likewise, the Hon'ble Apex Court in case reported reported as "Riaz Jafar Natiq v, Muhammad Nadeem Dar"( 2011 SCMR 1708 ), allowed bail in a case where the allegation against the accused was that he issued cheque of Rs. 20 Million which on presentation was dishonoured. The Hon'ble Apex Court observed that the case does not fall within the prohibitory clause of Section 497 Cr.P.C and the concession of grant of bail must be favourably considered and should only be denied in exceptional cases.
9. Moreover , in case laws reported as "Anees Ahmad Khan v, State" (2020 P.Cr.LJ Islamabad 268) and "Khurram Shahzad v, State"(2020 P Cr.LJ Islamabad 392) it is held that maximum punishment for the offence under section 489-F PPC is three years which does not fall within the prohibitory limb of Section 497 Cr.P.C; person of the petitioner was not required for further investigation; in such like cases grant of bail is a rule and refusal is an exception and that the bail could not be withheld as a measure of punishment.
10. In the present case, investigation has already been completed. The petitioner was arrested in this case on 21.01.2021 and is behind the bars since then. The circumstances of the present case warrant exercise of discretion as the bail cannot be withheld as of punishment.
Reliance is placed upon "Manzoor and 4 others v. The State" (PLD 1972 Supreme Court 81) wherein the Hon'ble Apex Court held that:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reason able grounds appear to exist to disclose their complicity . The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
11. The submission of the learned counsel that in case petitioner is released on bail, complainant may be deprived of his hard-earned money , is well responded in the case of "Muhammad Irfan v. State" (2015 P.Cr.LJ Islamabad 129) in terms that the provision of section 489-F P.P.C is not intended to be used for recovery of amount and the same is designed to determine the guilt and award sentence. In order to effect recovery, the proper course is to file suit in terms of Order XXXVII C.P .C, which is being filed, as confirmed by learned counsel for the complainant.
12. Moreover , when parties are admittedly in business relations, question of dishonest intention cannot be assessed without recording of evidence, at bail stage only tentative assessment of the material collected by the prosecution is permissible.
13. The case laws relied upon by learned counsel for the complainant have no relevance in the matter as law expounded by the Hon'ble Apex Court as well as by this Court on the subject is latter in time.
14. In view of above, instant bail petition is allowed , petitioner (Shabbir Ahmad Hussain) is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.1,00,000/- (one lakh only) with one surety in the like amount to the satisfaction of the learned Trial Court.
15. Needless to mention that this is tentative assessment for the purpose of this petition only, which shall not affect/influence trial of this case in any manner .