Sohail Alam Siddique Vs The State etc

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Crl. Misc. No. 23042-B of 2020 Sohail Alam Siddique vs The State etc.

Sr. Date of Order with signature of Judge, and that of parties No. order or counsel, where necessary.

04)28.07.2020 M/s Burhan Moazzam Malik and Muhammad Shahzad Khan Kakar, Advocates for the petitioner.

Mr. Muhammad Arshad Ali Farooqi, Deputy Prosecutor General for the State with Muhammad Riaz S.I. with record.

Mr. Muhammad Alamgir Khan, Advocate for the complainant.

Through instant petition, Sohail Alam Siddique (petitioner/ accused) has sought post-arrest bail in case arising out of F.I.R. No.185/2012 dated: 18.08.2012 registered under Section: 489-F PPC at Police Station: Masti Gate, Lahore.

2.After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the record with their able assistance, it has been noticed that allegation levelled against the petitioner is that complainant supplied iron ( )ولاہto the petitioner/accused valuing Rs.63,54,000/- and in lieu of the same, cheque bearing No.4704441 (mentioned in the F.I.R.) was issued by the petitioner/accused to the complainant, which was subsequently dishonoured; Section 489-F PPC was brought on the statute for the purpose of awarding punishment to the person, who issues the cheque dishonestly for fulfilment of obligation, which is dishonoured on presentation; for the purpose of ready reference, Section 489-F PPC is hereby reproduced: - “489-F PPC Dishonestly issuance a cheque.--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment 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 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.” (emphasis added) Bare perusal of aforementioned provision of law reflects that for invoking Section 489-F PPC, mere issuance of cheque or its dishonouring is not sufficient rather first of all it must have been proved that cheque was issued for fulfilment of obligation, meaning thereby that there must be material available on the record to show said obligation and in this case though it was alleged by the complainant that he supplied iron to the petitioner and in lieu of the same i.e. for the purpose of fulfilment of said obligation, impugned cheque was issued, yet learned Deputy Prosecutor General, on Court’s query, under instructions of police official present in Court and after

Crl. Misc. No.23042/B/2020 2

himself going through the available record has apprised that no material whatsoever has been produced by the complainant or even otherwise brought on the record to establish said obligation i.e. supply of iron by the complainant to the accused/petitioner, therefore, applicability of Section 489-F PPC is a matter of further probe in the case.

As far as question of huge amount involved in the case is concerned, suffice it to say that punishment for the offence under Section 489-F PPC is three years, or fine, or with both irrespective of the big amount and of course said punishment does not fall within the ambit of prohibition contained in Section 497 Cr.P.C. Section 489-F PPC cannot be used as a tool for the purpose of recovery of amount. Learned Deputy Prosecutor General has further informed that petitioner was arrested in the case on 16.01.2020 and is behind the bars since then; challan report already stands submitted in the concerned Court; no useful purpose would be served to the case of prosecution by keeping the petitioner in jail for an indefinite period. When aforementioned circumstances are seen in totality, then at present, case of the petitioner falls in the ambit of further inquiry within the meaning of sub-section 2 of Section 497 Cr.P.C.

As far as abscondance of the present petitioner is concerned, suffice it to say that when case of the petitioner otherwise falls in the ambit of further inquiry i.e. Section 497 (2) Cr.P.C., then on the basis of abscondance, bail cannot be refused; in this regard, guidance has been sought from the case of “Mitho Pitafi versus The State” (2009 SCMR 299), “Qamar alias Mitho versus The State and others” (PLD 2012 Supreme Court 222), “Ehsan Ullah versus The State” (2012 SCMR 1137), “Muhammad Shafi and others versus The State and others” (2016 SCMR 1593) and “Attaullah versus The State through AG Khyber Pakhtunkhwa and another” (2020

SCMR 451).

3.In view of what has been discussed above, instant petition for grant of post arrest bail is accepted and Sohail Alam Siddique (petitioner) is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees five hundred thousand only) with two sureties each in the like amount to the satisfaction of learned trial court.

4.It goes without saying that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petition and shall have no bearing upon trial of the case, which shall be decided on its own merits by the learned trial court within a period of four months after receipt of attested copy of this order.

(Farooq Haider) Judge Approved for reporting

(Farooq Haider) Kashif Judge