2024 S C M R 1567

2024 S C M R 1567
[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan
Azhar Rizvi, JJ
MUHAMMAD ANWAR---Petitioner
Versus
The STATE and another---Respondents
Crl. P.L.A. No.340 of 2024, decided on 3rd June, 2024.
(Against the order dated 29.01.2024 passed by the Lahore High Court,
Lahore passed in Crl. Misc No. 82102/B of 2024).
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan,
Art.185(3)---Dishonestly issuing a cheque---Pre-arrest bail, grant of---
Further inquiry---Cheque given as a guarantee---Every transaction
where a cheque is dishonoured may not constitute an offense---
Foundational elements to constitute an offense under section 489-F,
P.P.C. are the issuance of the cheque with dishonest intent; the cheque
should be towards repayment of loan or fulfillment of an obligation;
and lastly that the cheque is dishonoured---In the present case the
agreement in question was executed between petitioner (accused) and
person MA regarding a plot---Perusal of said agreement indicated that
the cheque in question was issued as Guarantee from the petitioner to
MA ---Complainant had failed to produce any receipt issued by the
petitioner while receiving cash amount of 2,00,000/-.---Tentative
assessment of the record showed that the cheque was not towards the
fulfillment of any obligation but rather it was given as security---Prima
facie, it did not attract the elements of section 489-F, P.P.C.---Petition
was converted into an appeal and allowed, and the petitioner was
admitted to pre-arrest bail.
Mian Allah Ditta v. The State and others 2013 SCMR 51 ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Constitution of Pakistan, Art.185(3)---Bail, grant of---
Principles---It is better to err in granting bail than to err in refusal
because ultimate conviction and sentence can repair the wrong
resulting from a mistaken relief of bail.
Chairman NAB's case PLD 2022 SC 475 ref.
Muhammad Amir Malik, Advocate-on-Record along with petitioner
for Petitioner.
Irfan Zia, Additional Prosecutor General, Punjab, Abdul Sami, SDPO
Sargodha and M. Sami Jan, I.O for the State.
Shahid Tabassum, Advocate Supreme Court amd Syed Rifaqat
Hussain Shah, Advocate-on-Record for the Complainant.
Date of hearing: 3rd June, 2024.
JUDGMENT
SYED HASAN AZHAR RIZVI, J.---Through the present petition, the
petitioner seeks leave to appeal against the order of Lahore High
Court, Lahore, dated 29.01.2024, (Impugned Order) whereby the pre-
arrest bail has been declined to him in FIR No.1002 dated 17.10.2023
registered under Section 489-F, P.P.C. at the Police Station City
Sargodha.
2. According to the gist of the aforesaid FIR lodged by Muhammad
Pervaiz Ali Hassan (complainant), on 08.06.2023 the brother-in-law of
the complainant purchased the property from the accused through the
complainant. The complainant in this regard made a payment of
Rs. 20,00,000/- to the petitioner in the presence of witnesses and in
return, the petitioner/accused Muhammad Anwar issued a cheque
bearing number 02559350 of his account before the witnesses in
favour of the complainant. That on the petitioner's demand, the
complainant also gave him Rs.2,00,000/-. Subsequently, the petitioner
failed to complete the transaction therefore the complainant
demanded back his amount and compensation. On the specified date,
complainant deposited the cheque in question in the account for its
encashment but the same was dishonoured due to a dormant account.
3. The learned counsel for the petitioner contends that the petitioner
has been falsely implicated in the case with mala fide intention and
ulterior motives; that the petitioner sold the house to the brother-in-
law of the complainant namely Attique and the cheque in question has
been given as a guarantee and this fact has already been mentioned in
the agreement; that the complainant has no nexus whatsoever with
the petitioner; that the petitioner has already instituted a civil suit
regarding the agreement in question before the civil court as he is the
owner and in possession of the plot in question as per the said
agreement and the complainant has registered a false and frivolous
case against accused.
4. The learned law officer assisted by the learned counsel for the
complainant vehemently opposed the contentions raised by learned
counsel for the petitioner. They contend that the petitioner is
specifically named in the FIR and he committed fraud with the
complainant by issuing a cheque in question of his dormant account;
that the petitioner attempted to deprive the complainant of a huge
amount and issued a cheque dishonestly which was dishonoured by
the concerned bank; that during the investigation, the petitioner has
been found guilty of the offence and lastly learned counsel for the
complainant for dismissal of the instant petition.
5. We have heard learned counsel for the parties and perused the
material available on the record.
6. The allegations outlined in FIR are that the complainant's brother-
in-law purchased the property from the Petitioner on 08.06.2023
through complainant and complainant in this regard made the
payment of Rs. 20,00,000/- to the petitioner in the presence of
witnesses and in return petitioner issued cheque No. 02559350 of his
account before the witnesses in favour of the complainant. To fulfil the
petitioner s demand, the complainant also gave him Rs. 2,00,000/-.
Eventually, the Petitioner failed to complete the transaction and
complainant started to demand his amount along with compensation.
7. Primarily, the agreement in question is executed between
Petitioner and Muhammad Attique regarding the plot. The perusal of
said agreement indicates that the cheque in question was issued as
Guarantee from the petitioner to Muhammad Attique. The
complainant has failed to produce any receipt issued by the petitioner
while receiving cash amount of 2,00,000/-. The tentative assessment of
the record shows that it is not toward the fulfillment of any obligation
but rather it was given as security. Prima facie, it does not attract the
elements of section 489-F, P.P.C.
8. This Court has held in the case titled Mian Allah Ditta,1 that every
transaction where a cheque is dishonoured may not constitute an
offense. The foundational elements to constitute an offense under this
provision are the issuance of the cheque with dishonest intent, the
cheque should be towards repayment of loan or fulfillment of an
obligation, and lastly that the cheque is dishonoured.
9. Furthermore, this Court in the case of Abdul Rasheed,2 has ruled

as follows:
Even otherwise, even if the complainant wants to recover his

money, Section 489-F of P.P.C. is not a provision which is
intended by the Legislature to be used for recovery of an alleged
amount. In view of the above, the question whether the cheques
were issued towards repayment of loan or fulfillment of an
obligation within the meaning of Section 489-F, P.P.C. is a
question, which would be resolved by the learned Trial Court
after recording of evidence. The maximum punishment
provided under the statute for the offence under Section 489-F,
P.P.C. is three years and the same does not fall within the
prohibitory clause of Section 497, Cr.P.C. It is settled law that
grant of bail in the offences not falling within the prohibitory
clause is a rule and refusal is an exception.
10. Liberty of a person is a precious right which has been
guaranteed by the Constitution of the Islamic Republic of Pakistan,
1973. By now it is also well settled that it is better to err in granting
bail than to err in refusal because ultimate conviction and sentence
can repair the wrong resulted by a mistaken relief of bail;
This court in the case of Chairman NAB,3 has ruled as follows:

To err in granting bail is better than to err in declining; for the
ultimate conviction and sentence of a guilty person can repair
the wrong caused by a mistaken relief of bail, but no satisfactory
reparation can be offered to an innocent person on his acquittal
for his unjustified imprisonment during the trial.
11. For the above reasons, this petition is converted into an appeal
and allowed. The impugned order of the High Court dated 29.01.2024 is
set aside. The petitioner is admitted to bail subject to furnishing bail
bonds in the sum of Rs. 100,000/- (one lac) with one surety in the like
amount to the satisfaction of the trial Court.
12. Before parting, it is reiterated that the observations made
hereinabove are tentative in nature. The trial court is at liberty to
independently adjudicate the case on its own merits, without being
influenced by the observations made hereinabove.
13. Above are the reasons of our short order of even date.
MWA/M-27/SC Bail granted.
1 Mian Allah Ditta v. The State and others (2013 SCMR 51)
2 Abdul Rasheed v. The State and others [2023 SCMR 1948]
3 [PLD 2022 SC 475]
;

2024 S C M R 1567

Uploaded by

Copyright:

Available Formats

2024 S C M R 1567

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2024 S C M R 1567

Uploaded by

Copyright:

Available Formats

2024 S C M R 1567

[Supreme Court of Pakistan]

9. Furthermore, this Court in the case of Abdul Rasheed,2 has ruled

Even otherwise, even if the complainant wants to recover his

This court in the case of Chairman NAB,3 has ruled as follows:

You might also like