Muhammad Nouman Qureshi VS The State

HCJD/C-121

ORDER SHEET

ISLAMABAD HIGH COURT

ISLAMABAD

CRL. MISC. NO.432-B/2014

Muhammad Noman Qureshi

VERSUS

The State, etc

S.No. of order/ Date of Order with signature of Judge, and that of parties or Proceeding hearing counsel, where necessary.

03-09-2014 Mr Naveed Malik, advocate for the petitioner. Malik Faisal Rafique, DAG.

Mr Muhammad Younas, SI with record.

The petitioner Muhammad Noman Qureshi son of Abdul Rauf Qureshi has sought post arrest bail in case, F.I.R. No.153, dated 12-03-2014, registered under Section 489-F of Pakistan Penal Code, 1860 (hereinafter referred to as "PPC") at Police Station Kohsar, Islamabad.

2.Brief facts as narrated in the FIR are that the complainant sold twenty one files of Marwa Town to the petitioner and as sale consideration, issued two cheques amounting to Rs.10 million each. The cheques were dishonoured by the Bank. Hence the FIR.

3.The learned counsel for the petitioner contends; that the story as narrated in the FIR is false; the cheques were issued as guarantee and there were no contractual obligations, as files cannot be sold; the petitioner is innocent and has no concern with the alleged offence; the offence does not fall within the prohibitory clause of Section 497 Cr.P.C.; the investigation is complete and petitioner is no more required for the purposes of investigation; the amount as claimed is disputed; the petitioner has no previous conviction; five other FIRs have been registered i.e FIR No. 77/2014 dated 22-01-2014, FIR No. 18/2014

Crl. Misc. No.432-B/2014

dated 22-01-2014, FIR No. 69/2014 dated 21-02-2014, FIR No. 263/2014 dated 12-06-2014 and FIR No. 245/2014 dated 12-02-2014; in four FIRs bail has been granted while in one bail has been applied; Relies on 2006 P.Cr.L.J 169 and 2005 P.Cr.R. 3; hence urges grant of bail.

4.The learned Additional Advocate General appeared alongwith Muhammad Younas, S.I. and opposed the bail. It is argued that; it is evident from the record that there was an existing business relationship between the accused and the complainant; the conduct of the accused brings his case within the exception to the general rule in case of offences falling within the non-prohibitory clause of section 497 Cr. P. C as there are five registered cases against the petitioner; the cheques have been issued by the accused. However, it is admitted that there is no conviction. It is stated that a huge amount is involved and, therefore, in the circumstances the accused is not entitled to bail. Reliance is placed on the case of Shameel Ahmed Versus The State, reported as (2009 SCMR 174) in support of the contention that registration of other cases would disentitle the petitioner for bail on the grounds that he is "habitual offender".

5.In rebuttal, the learned Counsel for the petitioner contends that the amount for which the alleged cheques have been issued is not relevant for the purposes of grant of bail. He placed reliance on several judgments of various High Courts. It is further contended that the proceedings in which bail has been sought, is for determining the criminal guilt and not for recovery of the amount for which appropriate proceedings can be initiated under the law, inter alia, Order-XXXVII

C.P.C.

6.After giving careful consideration to the arguments of the learned counsels and perusal of the record with their able assistance, the findings of this Court are as follows.

Crl. Misc. No.432-B/2014

7.The offence included in the FIR i.e. Section 406 PPC is, admittedly, of the category which falls within the non-prohibitory clause of section 497 Cr.P.C. By now the law and principles for granting bail in such cases are well settled. It is important to note that in the case of Zafar Iqbal Versus Muhammad Anwar and others (2009 SCMR 1488), a larger Bench of the Honourable Supreme Court has elucidated the principles for considering the grant of bail, where offences fall within the non-prohibitory clause. In the light of the said principles it has been held that where offences fall within the non- prohibitory clause, the granting of bail has to be considered favourably as a rule, but may be declined in exceptional cases. Examples, though not exhaustive, of such extraordinary and exceptional cases have further been listed as follows:

i)Where there is likelihood of abscondance of the accused;

ii)Where there is apprehension of the accused tampering with the prosecution evidence;

iii)Where there is danger of the offence being repeated, if the accused is released on bail; and

iv)Where the accused is a previous convict.

8.The F.I.R. in this case had been registered with a delay of three months.

The prosecution has not placed on record any material to suggest that the accused has been previously convicted. Admittedly he has not been convicted. The questions regarding the relationship between the parties and any contractual commitment giving rise to the issuance of the cheques, as to what is the exact amount to be paid, calls for further probe. There is nothing on record to show that the accused has ever been convicted. Admittedly, the report under Section 173 Cr.P.C. has been submitted and trial shall proceed in accordance with law. The investigations qua the petitioner have already been finalized; therefore, his continued custody is not likely to serve any beneficial purpose at this stage. The

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quantum of the amount involved in a case registered under section 489-F of PPC cannot be treated as an exception of the general rule that in such cases bail shall be considered favourably. Even otherwise, section 489-F of PPC is not a provision which is intended by the legislature to be used for recovery of an alleged amount. It is only to determine the guilt of a criminal act, and award a sentence, fine or both as provided under section 489-F PPC. On the other hand for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of CPC. It is also important to note that the offence does not fall within the prohibitory clause of sub-Section 1 of Section 497 Cr.P.C. In the light of principles and law laid down by the Honourable Supreme Court in cases where offences fall within the non-prohibitory clause of Section 497 Cr.P.C., his continued incarceration will not serve any useful purpose.

9.The learned Deputy Attorney General has raised a question which requires consideration by this Court. If an accused is involved in other cases registered under the relevant laws, will he/she be entitled to bail and treated as a "habitual offender"?

10.The above proposition can be answered by addressing the question i.e. if the argument of the learned DAG was to be accepted, what would be the effect on the right to defence and fair trial of an accused in another case in which trial is proceeding? The presumption of innocence is the basic and fundamental pillar of criminal law. It is a universal principle that every person is to be presumed to be innocent until proved guilty. This is the basis of the right to defence of an accused, and a key to a fair trial. This cardinal principle is embedded in the fundamental right guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which declares that "For the determination of - ----- in any criminal charge against him a person shall be entitled to a fair trial and due process". Fair trial and due process essentially envisages being free from Bias of every kind. A person may be facing trial in multiple cases registered under the

Crl. Misc. No.432-B/2014

relevant laws, and in each case he or she has an independent right to defence and to be presumed innocent unless proved guilty. If registration of a case or even multiple cases is to influence a court it will be seen as giving rise to a Bias and thus depriving such an accused of his right to a fair trial. Undoubtedly, justice is not only to be done but should be seen to be done. Even a conviction in another case may only be relevant for consideration for specific purposes, as for example, when the Court is considering enhanced punishment under section 75 of the PPC, because that is what the legislature has provided. The august Supreme Court in the case, Mounder versus The State, PLD 1990 SC 934, has held that the mere factum of registration of cases is not sufficient for forming an opinion under the fourth proviso to section 497(1) Cr.P.C. In the case titled, Jafar & Jafari Versus The State (2012 SCMR 606), it was held that the mere registration of a case by itself is not sufficient to declare an accused as a habitual offender, unless it is proved / established that he has been convicted in any of the said cases. In order to safeguard the valuable rights to defence and fair trial of the accused, the Court cannot allow itself to be prejudiced or in any manner influenced by the registration of another case, multiple cases or even conviction. Any such influence will deny an accused the right to a fair trial and due process, as it is inherent in the said rights that the Court is not only free from bias but ought to be seen as such.

11.It is a settled principle of law that each case has to be seen through its own facts and circumstances. The grant of bail, no doubt, is the discretion vested in a Court, which cannot be exercised in a manner that is arbitrary, fanciful or perverse. If an accused has made out a case for the grant of bail on reasonable grounds, then refusing the same merely because he is convicted in some other case would give rise to the factor of bias and, thereby, take away the right of such an accused to defence, due process and above all, fair trial. The presumption of innocence until proved guilty will also be negated. It will result in an absurd situation in the sense that conviction in one case would be deemed as a conviction

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in every case. On the same analogy, the accused will never be able to get bail in other cases and, therefore, remain incarcerated without trial. This Court is, therefore, not impressed with the arguments of the learned DAG that being involved in multiple cases will disentitle the petitioner to the concession of bail by considering him as "habitual offender".

12.The case of Shameel Ahmed Versus The State, reported as (2009 SCMR 174), cited by the learned DAG has been examined and it has been found distinguishable on facts and circumstances. It was the overall conduct of the accused which was relevant and weighed by the august court, inter alia, his abscondance for more than a year without obtaining bail, and ultimately when he did get bail; it was by suppressing material facts from the court, including other cases registered against him. Hence, this Court is of the view that the petitioner is entitled to bail.

13.In the circumstances as mentioned above, this petition is allowed and the petitioner is admitted to bail, subject to furnishing bail bonds in the sum of Rs.200,000/- (Rupees Two Hundred Thousand) with one surety in the like amount to the satisfaction of learned Trial Court. However, keeping in view the five cases registered against the petitioner, the bail is granted on the condition that he shall make personal appearance on every hearing, unless exempted by the learned trial Court. In case he violates this condition, this bail shall be recalled.

Needless to mention that this is tentative assessment, which shall not affect trial of this case in any manner.

(ATHAR MINALLAH)

JUDGE

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