Muhammad Mukhtiar-petitioner seeks cancellation of bail already allowed to Sajjad Hussain, Muhammad Bilal-Respondents Nos, 1 & 2 vide order dated 16.7.2003 passed by learned Sessions Judge, Lodhran, in case F.I.R. No, 126, dated 16.9.2003, under Section 489-F P.P.C., registered at Police Station City, Dunyapur, District Lodhran.
2. Learned counsel appearing on behalf of the petitioner vehemently argues that learned Sessions Judge, Lodhran, has confirmed interim/anticipatory bail on the ground that no recovery is to be effected from the petitioner, which is incorrect. According to learned counsel, recovery of cheque book is still to be effected from the petitioner. Adds that mala fide which is the only ground for the grant of pre-arrest bail has neither been taken nor attended to by the learned Court. Therefore, bail granting order is not in accordance with law and enunciated by the augur. Supreme Court in a case reported as "Zia-ul-Hassan vs. The State" (P.L.J. 1984 SC 56). Also adds that findings of the learned Sessions Judge that case against Respondents Nos, 1 and 2 does not fall within the prohibitory clause is also not valid in the circumstances of the case; that learned Judge has granted bail on the assumption that offence with which Respondents Nos, 1 and 2 were charge are bailable one, which according to learned counsel is also incorrect. Lastly, he submits that Respondents Nos, 1 and 2 are confirmed cheaters, as there are other similar cases pending against them. Therefore, concession of pre-arrest bail has wrongly been extended to them.
3. Conversely, learned counsel for the State assisted by learned counsel for Respondents Nos, 1 and 2 submits that pre-arrest bail can only be cancelled in exceptional circumstances i.e. if there is likelihood of abscondance of the accused or there is likelihood of tampering with evidence of the prosecution, or there is danger of repetition of the offence or there is misuse of concession of pre- arrest bail. Adds that all the factors are not present in the instant case and in support of contention learned counsel has relied upon "Tariq Bashir and 5 others vs. The State (P.L.D. 1995 Supreme Court 34) and "Mahr Ghulam Nabi vs. Muhammad Shafiq and another" (1982 S.C.M.R. 196). Also adds that mala fide on part of the prosecution has been alleged, as there is a civil suit pending between the respondents and father of the complainant for the cancellation of cheque in dispute; that said suit was filed on 5.7.2003, whereas instant case was registered on 16.7.2003 and that even without mala fide if the case on merits is made out as of further inquiry then there is no point in first refusing bail before arrest and then admitting the accused to bail through petition bail after. arrest. Lastly, they submit that learned Sessions Judge, has rightly confirmed pre-arrest bail of Respondents Nos, 1 and 2.
4. I have heard the learned counsel for the parties and have perused the record carefully as well as judgments cited at the bar with the help of learned counsel. By virtue of Criminal Law (Amendment) Ordinance, 2002 new Section 489-F has been inserted into Pakistan Penal Code after Section 489-E. The newly added section reads as follows:-- "489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment 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."
5. Through said Ordinance further amendment in the Core of Criminal Procedure in Schedule II after entires relating to Section 489-E was made as follows:-- 12 34 5 6 7 8 989-FDishonestly issuing a cheque for repayment of loan etc.DittoDittoDittoCompound ableImprison- Inent of either des- cription for three years or with fine, or with bothMagist - rate of the first class
6. The bare perusal of the amendment shows that newly added offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, makes the said offence, as bailable. Same is clear from the amendment in Schedule II, Act V of 1898 in the Criminal Procedure Code. However, it may be pointed out that newly added section has been shown in one copy of the Major Act, as bailable and in another as on-bailable offence. In order to resolve this controversy, I would like to refer the salutary principle for the interpretation of Penal Law, as is evident from "Maxwell on the interpretation of Statutes" which is reproduced as under:-- The principle applied in construing a penal Act is that if, in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it will be resolved in favour of the petitioner who would be liable to penalty."
7. The sentence provided for the newly added offence is three years or with fine or with both.
Keeping iii view that offence is also punishable with fine or both. I am of the view that offence is bailable and this interpretation is also unbelievable to the person, who is liable to the penalty.
Clause analysis all the provisions of Penal Codes also reveals that where punishment is in the form of three years or both offence had been made bailable. Offence against other Laws punishable with imprisonment not exceeding three years or with fine or with both can safely be held to be bailable unless specifically declared and made as non-bailable by the legislature in the aforesaid Schedule II. Keeping in view principle for the interpretation of statutes as well as offence in question is punishable with imprisonment not exceeding three years or with fine or with both. I am persuaded to hold that offence under Section 489-F is bailable offence therefore, Respondents Nos, 1 and 2 were entitled to be admitted to bail as of right. It may also be pointed that the considerations for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. In the instant case, learned counsel for the petitioner has failed to point out any exceptional circumstance sufficient for the cancellation of bail already granted to Respondents Nos, 1 and 2. The civil suit was filed by Respondent No, 1 against son of the complainant with regard to validity of cheques in dispute on 5.7.2003 while instant case was registered on 16.7.2003, which itself depicts mala fide and ulterior motive on part of the prosecution. Learned counsel for the petitioner has failed to point out any irregularity or illegality , or perversity of reasoning committed by the learned Sessions Judge, while confirming bail before arrest of Respondents Nos, 1 and 2. No useful purpose is likely to be served if bail of the accused is cancelled on any technical ground because after arrest they should be allowed bail on the ground that case against Respondents Nos, 1 and 2 are punishable only to the extent of three years or with fine or with both. Respondents Nos, 1 and 2 are not required for further investigation. In this view of the matter, bail granting order does not warrants interference by this Court.
8. This petition for cancellation of bail is dismissed being devoid of any force.