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THE PESHAWAR HIGH COURT,

BANNU BENCH.
[Judicial Department].

Cr.Misc./ BA No.33–B of 2015

JUDGMENT
Date of hearing 13.02.2015 .

Appellant-Petitioner: Nauman Qureshi by M.

Anwar Khan, Mamash Khel & Umer Khan Advocates.

Respondent : State by Qudrat Ullah Gandapur,

Asstt: A.G
Complainent By M. Shoaib Khan, Advocate.

MUHAMMAD YOUNIS THAHEEM, J:- Having

unsuccessful in obtaining bail from the two courts

below the accused/ petitioner Nauman Qureshi,

involved in case F.I.R No.353, dated 30.06.2014 under

sections 489-F PPC, Police Station Cantt, Bannu, has

come to this Court, through counsel, for the same relief.

2. Precisely stated, facts of the prosecution

case as per the contents of F.I.R registered on the basis

of written complaint of one Molvi Abdul Ghafar

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Qureshi are to the effect that accused/ petitioner

Nouman Qureshi was Chief Executive N.E Associates

Islamabad, has business terms with him, due to which

the petitioner was debted to the tune of rupees five Cror

and for payment of the same he tried to put the task

tomorrow, but lastly on 01.12.2013 issued a cheque

bearing No.0234133 of United Bank Melody Branch to

the complainant, which on its presentation was

dishonored.

3 Arguments heard and record perused.

4. Perusal of the record reveals that case was

reported to the local police with delay of six months

from the handing over the cheque to the complainant

and one month after its dishonor. Further after

registration of the case on 30.06.2014 the accused/

petitioner was brought from central Jail Adiyala on

23.07.2011 to Police Station Cantt: Bannu, and since

then the petitioner is behind the bars, such delay creates

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doubt on the veracity of the prosecution story. Ref.

“Mustansar Yousaf Sukhera Vs the State”, (2010

YKR 624 Lahore)

5. Moreover, the amount covered by the

cheque was paid by the complainant to the petitioner

from time to time for the purposes of the business and it

is for the return of such amount and there is no

evidence available with the complainant as to how,

when and by what process various amounts were paid

to the petitioner for business purpose. The matter

between the parties is of civil nature and when the

business transaction is admitted, as in the instant case,

the Courts normally allow bail in such like cases.

Reliance is place on case titled “Muhammad Akbar Vs

the State” (2005 PCr.LJ 677), wherein it is held:

“6. From the perusal of the record,

it reveals that it is a case of business
dealing and transaction between the
petitioner and the complainant;
therefore, the matter between the
petitioner and the complainant is
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that of civil nature. Moreover, the

offence against the petitioner does
not fall within the prohibitory clause.
The maximum punishment provided
for the offence is three years
whereas the petitioner is behind the
bars for the last fourteen months
and there is no progress in the trial
and the continued custody of the
petitioner is not likely to serve any
beneficial purpose rather same
would amount to punishment before
conviction, which is not permissible
under the criminal jurisprudence.
Moreover, where the business
transactions are admitted the Courts
have allowed bail and in this regard,
reliance is placed on the cases of
Muhammad Akbar v. The State
2005 PCr.LJ 677, Rana Ehsan v.
The State 2004 YLR 2675, Major
Anwar-ul-Haq v. The State PLD
2005 Lah. 607 and Haq Nawaz
Khan v. The State 2006 YLR 50.”
In similar situation, the Hon’ble Supreme Court in a

recent judgment “Muhammad Sarfaraz Vs The state

(2014 SCMR 1032) held in unambiguous words as:

“The complainant however alleges

that this was a 'self cheque' and
therefore, it was issued to him and
accordingly the dishonouring of the
cheque would attract the provisions
of section 489-F, P.P.C. He has also
mentioned that the amount covered
by the cheque was paid by the
complainant to the petitioner from
time to time for the purposes of the
business and it is for the return of
such amount. Contrarily, on further
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query, there is no evidence available

with the complainant as to how,
when and by what process various
amounts were paid to the petitioner
for business purposes. To that end,
these aspects of the matter have not
been taken into consideration by the
learned High Court while declining
bail to the petitioner. We find these
contours of the case to be quite
conspicuous and relevant entitling
the petitioner to bail when the case
does not fall within the prohibitory
clause and the maximum sentence
for the offence under section 489-F,
P.P.C. is three years. At the same
time, the petitioner is behind the
bars for the last about six months.”

6. Further, it is yet to be established during

the trial that as to whether the cheque in question was

bounced/ dishonored due to the fault of the bank

concerned or of the accused/ petitioner, which makes

case of accused / petitioner of further probe and inquiry

under section 497 (2) Cr.PC. The intent of legislation to

enact section 489-F is to penalize a person who

knowingly issue a cheque that it would be dishonoured,

which fact can only be ascertained by recording

evidence during trial, hence, it requires further inquiry.

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Reliance may be placed on case titled “Muhammad

Shafiq Vs the State” (2011 P Cr. L J 869 Lahore)

7. Lodging an FIR, does not provide

mechanism for its recovery. A cheque is issued keeping

in it the value to be paid to payee and for the recovery

of the same, suit may be filed under relevant law, while

the record reveals that up till now no civil suit for the

recovery of same amount has been filed, hence, element

of blackmailing on the part of complainant could not be

ruled out.

8. The offence with which the accused/

petitioner is charged does not fall within the prohibitory

clause of section 497 (1) Cr.PC as the maximum

punishment is three years or fine or both and in such

cases bail is rule, while refusal is exception. As is held

by their lordship in case titled “Riaz Jafar Natiq Vs

Muhammad Nadeem Dar and others (2011 SCMR

1708), wherein it has been held;-

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“Thus keeping in view the law laid down

in the case of “Zafar Iqbal V.

Muhammad Anwar and others” (2009

SCMR 1488) ordaining that granting bail

must be favourably considered and

should only be declined in exceptional

cases”

9. Bail can be declined only in extraordinary

and exceptional cases, which are to be taken into

consideration depending upon each case. In such like

cases, which does not fall within prohibitory clause

exceptional circumstances may be, i.e. (a) where there

is likelihood of abscondance of the accused; (b)

whether there is apprehension of the accused tampering

with the prosecution evidence; (c) whether there is

danger of the offence being repeated if the accused is

released on bail; and (d) whether accused is a previous

convict, this principle has been enunciated in the

judgment of hon’ble Supreme Court in case titled

“Subhan Khan Vs. the State” (2002 SCMR 1797). No

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exceptional circumstances exist, on the basis of which

bail could be declined.

10. It is also one of the important aspect of the

case that the offence for which the accused/ petitioner is

charged with having lesser punishment and if he

remained in jail for longer time and ultimately the

prosecution failed to establish guilt against him, long

detention in jail would cause loss to the accused/

petitioner and his liberty would be curtailed without

any legal justification.

11. The contention of learned counsel for

complainant/ respondent that huge amount is involved,

suffice it to say that there is no categorization of

offence on the basis of amount in PPC, like the other

cases, as in Narcotics the offence has been categorized

on the basis of quantity of narcotics or in cases of hurt

cases, where the offence has been classified on the basis

of grievousness of hurt. It does not make any difference,

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whether cheque is for the smaller amount or huge.

Upon dishonor of cheque mischief of section 489-F is

attracted, which does not fall within the prohibitory

clause. On this point reliance can be placed on case

tiled “Raja Mumtaz Hussain Arif Vs State” PLJ 2009

Cr.C (Islamabad) 1070.

12. Furthermore, neither there is past history

of involvement of the accused/ petitioner nor accused/

petitioner has made any confession. Investigation

against the accused/ petitioner is complete and he is no

more required to the local police for further

investigation and as per settled principles of law, bail

cannot be withheld as punishment, when accused/

petitioner is otherwise entitled to the concession of bail

and thus further detention of the accused/ petitioner in

jail would serve no useful purpose.

13. I am inclined to grant bail to the accused/

petitioner under the facts and circumstances of the case

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narrated hereinabove. These are the reasons of my short

order dated 13.12.205, which is reproduced as under:--

“For the detailed reasons to be recorded later

on, petitioner Nouman Qureshi is admitted to

bail in case F.I.R No. 353 dated 30.06.2014,

registered under section 489-F PPC at Police

Station Cantt. District Bannu provided he

furnishes bail bonds amounting to Rs.200000/-

(Two Lacs) with two sureties each in the like

amount to the satisfaction of Illaqa/ judicial

Magistrate concerned.”

Announced:
Dt:-12.01.2015 JUDGE