-Civil suit--Partial payment-Petitioner has already paid some amount besides transfer of landed property in the name of the complainant who has already filed suit under Order XXXVII C.P.C for the recovery of certain amounts--

 PLJ 2021 Cr.C. 1033

Criminal Procedue Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Post arrest bail--Civil suit--Partial payment--Grant of--Investigation in the subject case has already been completed and the petitioner is no more required for further probe while offence entails punishment up to three years, which does not fall within the ambit of prohibitory clause of section 497 Cr.P.C.--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--Petitioner has already paid some amount besides transfer of landed property in the name of the complainant who has already filed suit under Order XXXVII C.P.C for the recovery of certain amounts--Transfer of some land and part payment pursuant to the agreement has already been made, therefore, brings the case of the petitioner within the ambit of further inquiry--Bail was allowed.                                                                            

                                                     [Pp. 1034, 1035 & 1036] A, B, C & D

2020 SCMR 1268, 2020 P.Cr.LJ 268; 2019 P.Cr.LJ. 295;
2011 SCMR 1708; 2020 PCr.L.J 392; PLD 1972 SC 81;
2015 P.Cr.L.J 129 ref.

Raja Faisal Younas, Advocate for Petitioner.

Mr. Mashhood Azam Awan, State Counsel.

Raja Rizwan Abbasi, Advocate for Respondent No. 2.

Date of hearing: 23.04.2021.

 PLJ 2021 Cr.C. 1033
[Islamabad High Court, Islamabad]
Present: Fiaz Ahmad Anjum Jandran, J.
FAISAL SHAHZAD--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 299-B of 2021, decided on 23.4.2021.

Order

This is post-arrest bail petition by accused- petitioner (Faisal Shahzad) in F.I.R. No. 333 dated 13.09.2018, under Section 489-F P.P.C. Police Station Aabpara, Islamabad.

2. According to the allegations, set-forth in the F.I.R, petitioner and his father Sabir Hussain (co- accused) sold landed property to the complainant but could not transfer the same in his name and in order to repay the amount received, issued cheque worth Rs. 12,500,000/-, which on presentation, stood dishonoured by the concerned bank.

3 Learned counsel for the petitioner argued that under the agreement land measuring 82-Kanal has already been transferred
in the name of the complainant while payment to the tune of
Rs. 6,000,000/- has also been made; that it was a guarantee cheque; that petitioner is behind the bars for the last three months; that the complainant has already filed suit under Order XXXVII C.P.C for the recovery of amount; that offence does not fall within the ambit of prohibitory clause of section 497 Cr.P.C, and petitioner is no more required for further investigation, therefore, entitled to the concession of post-arrest bail. Learned counsel placed reliance upon case laws reported as 2020 SCMR 1268, 2020 P.Cr.LJ 268 (Islamabad) and 2019 P.Cr.LJ. 295 (Lahore).

4. On the other hand, learned counsel for the complainant argued that petitioner’s bail was earlier recalled by the learned Judicial Magistrate vide order dated 05.11.2020 due to default in payment of outstanding amount pursuant to undertaking/compromise; that against the said order, petitioner filed W.P. 3966/2020 which was dismissed by this Court vide order dated 30.12.2020; that petitioner did not challenge the said order which still holds the field, therefore, instant post arrest bail petition is liable to be dismissed on this score as the petitioner has committed default in honouring his commitment pursuant to which he was admitted to post arrest bail.

5. Learned State Counsel affirmed that investigation in the subject case has since been completed and petitioner is behind the bars for the last more than three months.

6. Arguments heard, record perused.

7. Responding to the submission of learned counsel for the complainant, suffice it to say that the referred observations were to the extent of bail cancellation order passed by the learned Judicial Magistrate and affirmed by the learned Revisional Court. It was only meant to ascertain the veracity of bail rejection order and in, no way, would be considered an omnibus order with binding effect on other legal remedies as well that includes application for post arrest bail.

8. Admittedly, investigation in the subject case has already been completed and the petitioner is no more required for further probe while offence entails punishment up to three years, which does not fall within the ambit of prohibitory clause of section 497 Cr.P.C. The Hon’ble Apex Court in recent judgment reported as “Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhawa and others” (2020 SCMR 1268), has graciously 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.”

9. Likewise, the Hon’ble Apex Court in case 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.

10. Moreover, in case laws reported as “Anees Ahmad Khan v. State” (2020 P.Cr.L.J Islamabad 268) and “Khurram Shahzad v. State” (2020 PCr.L.J 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.

11. When record examined, it is noticed that petitioner has already paid some amount besides transfer of landed property in the name of the complainant who has already filed suit under Order XXXVII C.P.C for the recovery of certain amounts. The petitioner is behind the bars for the last three months while conclusion of trial is not in sight, therefore, in the attending circumstances, petitioner has been able to make out a case for grant of post arrest bail on merits at this stage.

12. 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 SC 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.”

13. 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 resort civil action in terms of Order XXXVII C.P.C, which the complainant has already availed. Guidance is sought from the case law reported as “Muhammad Irfan v. State” (2015 P.Cr.L.J 129).

14. In line with above discussion/findings, tentative assessment of the material available on record guides to hold that the offence alleged against the petitioner entails punishment up to three years which does not fall within the ambit of prohibitory clause of section 497 Cr.P.C, in like offence, grant of bail is a rule and refusal is an exception, he is behind the bars for the last three months, investigation has already been completed, there is a civil dispute, a suit under Order XXXVII C.P.C for the recovery of amount has already been filed by the complainant, the transfer of some land and part payment pursuant to the agreement has already been made, therefore, brings the case of the petitioner within the ambit of further inquiry.

15. In view of above, instant bail petition is allowed, petitioner (Faisal Shahzad) is admitted to post-arrest bail in this F.I.R subject to furnishing bail bonds in the sum of Rs. 2,00,000/- (two lakh) with one surety in the like amount to the satisfaction of the learned Trial Court.

16. 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.

(K.Q.B.)          Bail allowed