Nasar Khan vs The State etc.

Criminal Misc.No.5465-B-2013

Dr. Nasar Khan. The State, etc.

043-06-2013 Mr. Muhammad Ijaz Khan, Advocate for the petitioner. Mr. Nasir Mahmood Sial, DDPP for the State. Mr. Ashfaq Qayyum Cheema, Advocate for the complainant.

Muhammad Amin, ASI with record.

Dr. Nasar Khan, the accused petitioner seeks post arrest bail in case FIR No.90-2013 dated 31.01.2013 registered under Section 489-F PPC at P.S.

Civil Line, Faisalabad.

2.The allegation against the petitioner is that he issued a cheque bearing No.3237777 of Rs.10,00,000/- dated 05.03.2012 in favour of the complainant, which was dishonoured on its presentation before the Bank concerned.

3.The learned counsel for the petitioner has contended that case against the petitioner is false. The cheque was issued by the petitioner as there was business transaction between the parties and in spite of the fact the complainant has lodged this false case just to disgrace and humiliate the petitioner with malafide intention and ulterior motive in connivance with police;

that the offence does not fall falls within prohibitory

clause of Section 497 Cr.P.C. that the petitioner is behind the bars since 06.02.2013 and no more required for further investigation, therefore, the petitioner is entitled to the concession of bail.

4.The petition has been opposed from the complainant side and it is contended by learned DDPP that the petitioner is nominated accused of the FIR, who had issued cheque in favour of the complainant dishonestly and deprived the complainant from a huge amount and during the investigation he has been declared guilty; that there is no malafide on the part of the complainant to falsely involve the petitioner in this case; that sufficient material is available against the petitioner to connect him with the commission of offence, therefore, he is not entitled to the concession of bail.

5.Arguments heard and record perused.

6.The issuance of cheque by the petitioner to the complainant is admitted and main contention of learned counsel for the petitioner was that the alleged cheque was only issued on the basis of business transaction and this fact is also proved from the record. Admittedly, there was business transaction between the parties and the petitioner issued allegedly cheque in respect of payment for the purchase of carton and the same was dishonoured by the concerned Bank on its presentation due to insufficient fund on 11.05.2012. There was business transaction and previous financial dealings; obligation may not per se fall within the mischief of Section 489-F PPC. The dispute between the parties is of a civil in nature and no cogent evidence is

available to attract the provision of Section 489-F PPC. The petitioner is behind the bars since 06.02.2013 and he is no more required for further investigation. The offence does not fall within prohibitory clause of Section 497 Cr.P.C. and basic rule regarding the offence not falling within the prohibitory clause is bail and not jail. It has also been held by the Hon’ble Supreme Court of Pakistan in case titled “Riaz Jafar Natiq. Vs. Muhammad Nadeem Dar & others”(2011 S.C.M.R. 1708) that where the case does not fall within the prohibitory clause of Section 497 Cr.P.C, the concession of granting bail must be considered in favour of the accused and be denied in the exceptional circumstances, therefore, the petitioner is entitled to the concession of bail.

For the foregoing reasons, the instant application is accepted and petitioner is admitted to bail in the sum of Rs.3,00,000/- (three lacs rupees) with two sureties each in the like amount to the satisfaction of the learned trial Court.

(Aalia Neelum) Judge

Approved for Reporting

Judge

*R.Yousaf*