Taj Ali Khan Vs The State etc.

JUDGMENT SIIEET

IN THE PESHAWAR HIGH COURT,

BAI\IIIUBENCH

(Judicial Department)

Cr: Misc: BA No. 337-B 12023

Taj Ali Khan.

Versus The State etc:

JADGMENT

Date of hearing 06.07.2023.

For petitioner: Mr.Muhammad Waqar Alam, advocate.

For the State: Mr.Umer Qayum Khan, Asstt: A.G.

For respondent: Messrs. Wasiullah Khan Khattak and Haji Malak Rahman Khattak,advocates.

FAZAL SUBHAN, "L- Instant is a bail application of petitioner Taj Ali Khan s/o Mughal Khan r/o Darwiash Khel Banda Daud Shah, Tehsil and District Karak, who is seeking his post-arrest bail in connection with case F.I.R No.290 dated 30.05.2023 r.r/s 489-F P.P.C, Police Station, Karak city, District Karak.

) On the application of complainant, Arab Gul advocate, an inquiry into the issuance of two cheques were conducted by the local police of

Police Station, Karak city and after getting legal opinion from District Public Prosecutor concemed, case in hand was registered. It was contention of the complainant that he has friendly relationship with the petitioner Taj Ali Khan, a contractor by profession and at the need he used to extend financial help to him and in this way an amount of Rs.25,00,000/- (Twenty five lacs) was out-standing against him. On his demand, the petitioner Taj Ali Khan handed over two cheques valuing Rs.900,000/- (nine Lacs) and another of Rs.11,80,000/- (eleven lacs and eighty thousand) which were presented in the bank for encashment but these were retumed by the Manager on the plea that Taj Ali Khan has refused to encash the said cheques. Accordingly on the report of complainant, case in hand was registered.

3 After arrest, the petitioner applied for bail in the court of Judicial Magistrate-IV, Karak, and then in the court of leamed Additional Sessions Judge-I, Karak, but his bail applications were dismissed, hence, he filed the instant bail petltlon.

4 Arguments of leamed counsel for

petitioner and leamed counsels for complainant assisted by the leamed AAG heard and record gone through.

I After hearing arguments of both the leamed counsel for the parties and without dilating upon deep merits of the case, it is clear that offence u/s 489-F P.P.C, provides maxlmum punishment for three years and, therefore, it does not fall within the prohibitory limb of section a97$) Cr.P.C, and in such like offences grant of bail is a rule and refusal an excepion. This principle is discussed and elaborated by the superior Courts in plethora of judgments. In the case of "lehanzeb Khan V. The State through Additional Advocate General Khyber Pakhtunkhwa" reported in 2020 SCMR 126E and "Tariq Bashir and 05 olhers V. The State" (PLD 1995 SC 34), the august Court has held that "bail in cases not falling within the prohibitory clause will be declined/refused only in ertraordinary and exceptional circumslances". In another case titled "Muhammad Tanveer Vs The State and another" (PLD 2017 SC 73j),the august Court held that:-

'6. We are shocked and distwbed to observe that in cases of this nature, not falling within the prohibilion contained in section 497, Cr.P.C., tnvariably grant of bail k refiued on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such ofences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted indisposal of such petitions. This Court is purely a conslitutional Court to deal with intricate questions of law and Constitution and to lay down guiding princtple for the Courts of the country where law points require interpretation. t'

In the case of uRao Ghulam Mustafo V.

The State and onothet" (2023 P.CnL.J 499), in identical matter, it has been held:- "6. The maximum punishment of offence provided under section 489-F, P.P.C. is not more than imprisonment for three years or Jine or both, as such, the same is not covered by the prohibition contained in subsection (l) of section 497, Cr.P.C. In view of the dictum laid down in Tariq Bashir and 5 others v. The State - PLD 1995 SC 34, in non-bailable offences falling in the second cdtegory i.e. punishable with imprisonment for less than ten years, the grant of bail is a rule and refusal an exception. No exceptional circumstances could be pointed out by the learned prosecutor as well as the learned

counsel for the complainant, as enumerated in Tariq Bashir supra.

Further wisdom can be extracted from the cases titled Muhammad Tanyeer v. The State - PLD 2017 Supreme Court 733 and Abdul Saboor v. The State through A.G.

Khyber Pakhtunkhwa and another -

2022 SCMR 592. "

6 For all the above reasons, there is no doubt that offence u/s 489-F P.P.C, is not covered by the prohibitory clause of Section 497(l) Cr.P.C, and in ordinary circumstances, bail is granted to the accused who has allegedly given a cheque for encashment but has been dishonored either due to insufficient amount or any other reason.

7 It has been argued by the leamed counsel for petitioner that the petitioner lsa contractor and the amount was advanced as a share in the business and this process continued for the last more than a decade and the cheques were issued in respect ofthe business fiansaction, hence, the necessary ingredient of handing-over the cheques dishonestly is not attracted to the case of petitioner because the same were neither dishonestly given nor there was intention to knowingly defraud the complainant, thus, in this situation the cheques were only guaranty cheques.

In this view of the matter, it is yet to be established during trial as to whether parties had any business transaction as well as the nature of the cheques advanced to the complainant and this fact also makes the case of petitioner one of further inquiry into his guilt.

8.For the above mentioned reasons, the instant petition is allowed and the accused/petitioner is admitted to bail in the instant case subject to fumishing bail bonds of Rs.10,00,000/- (ten lacs) with two sureties each in the like amount, to the satisfaction of the learned Illaqa Judicial Magistrate/IvIOD, concemed. The sureties must be local, reliable and men of means.

9 These are the detailed reasons of the short order ofthe even date.

Announced.

'lmronullah PSt ---_f

JUD GE

(S.B)

Ilon'ble Mt Jusdce Faul Subhm

(( Nu

3 1 JUL 2023

nlfhw*,