bail grant in 489 F PPC

2013 M L D 1613

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD ILYAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5453-B of 2013, decided on 14th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 87 & 88---Penal Code (XLV of 1860), S 489-F---Dishonestly issuing a cheque---Bail, grant of---Cheque issued for repayment of a loan---Although complainant had given an amount to the accused but no reason for repayment of loan had been explained in the F.I.R., therefore involvement of accused could only be determined by the Trial Court after recording of evidence---Offence alleged was punishable with three years' imprisonment, therefore, it did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was no more required for investigation and challan against him had been submitted before the Trial Court---Although accused was declared a proclaimed offender but proceedings of proclamation under Ss.87 & 88, Cr.P.C. were not made in accordance with law as without waiting for expiry of a period of 30 days, accused was declared proclaimed offender---Accused was granted bail in circumstances.

Rana Saqib Mumtaz Ahmed Khan for Petitioner.

Nawaz Shahid, Deputy District Prosecutor General with Ashraf, S.I. with recordMian Muhammad Aslam for the Complainant.

ORDER

MISS AALIA NEELUM, J.---Through this petition, Muhammad Ilyas petitioner has sought post arrest bail in case F.I.R. No. 163 dated 17-8-2010 registered under section 489-F P.P.C. at Police Station Kakrali, District Gujrat.

2. In the F.I.R. it was stated that in a transaction the petitioner issued a cheque amounting to Rs.2,50,000 to the complainant which was presented in the bank and the same was dishonoured as such the case was registered against the petitioner.

3. Learned counsel for the petitioner contends that the petitioner has been involved in this case falsely; that no reason regarding loan has been explained in the F.I.R.by the complainant; that the offence does not fall within prohibitory clause of section 497 Cr.P.C.; that the petitioner was arrested in this case on 14-11-2012 and is behind the bars since then and he is no more required for further investigation; that in such like cases, grant of bail is a rule and refusal is an exception, therefore, the petitioner may be granted bail. Reliance is placed on case reported as Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488).

4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has vehemently opposed the bail by submitting that the cheque belongs to account of the petitioner and the same is duly signed by him; that the cheque was issued in respect of repayment of amount which was due towards the petitioner as he took loan from the complainant as such the petitioner has defrauded the complainant and deprived him of a huge amount; that the petitioner has been declared proclaimed offender on 15-10-2010 thus he remained proclaimed offender for two years as such he is not entitled to any exception.

5. I have heard the learned counsel for the parties and gone through the record.

6. Since the petitioner was arrested on 14-11-2012 and warrants of arrest was issued on 6-10-2010 whereas proclamation under sections 87, 88, Cr.P.C. was issued on 15-10-2010 and challan under section 512 Cr.P.C. was submitted in the court on 20-10-2010. All these dates reflect that proceedings of proclamation were not made in accordance with law as without waiting for expiry of a period of 30 days, present petitioner was declared proclaimed offender which is against the law. Section 87(1) of Cr.P.C. is reproduced as under:--

"(If any Court is satisfied after taking evidence that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified Trial Court time not less than thirty days form the date of punishing such proclamation."

7. In this case, Proclamation under Sections 87 and 88 of Cr.P.C. was issued on 15-10-2010 and without waiting for prescribed period of 30 days and without recording of statement of police officials, the petitioner was declared proclaimed offender whereas the petitioner could not be deemed to be a proclaimed offender, thus the procedure adopted by the learned trial court was unwarranted by law. No doubt, the amount was given to the petitioner by the complainant but no reason for repayment of the loan has been explained in the F.I.R. In the given circumstances, involvement of the petitioner can only be determined by the learned trial court after recording of evidence. The offence is punishable with three years R.I. only and does not fall within prohibitory clause of Section 497 Cr.P.C. It is well settled law that in such like cases grant of bail is rule and refusal is an exception. No exceptional circumstance has been pointed out by learned counsel for the complainant to restrain grant of bail. Person of the petitioner is not required for the purpose of investigation and the petitioner cannot be detained in jail for indefinite period. Challan has been submitted before the trial court so further detaining the petitioner for indefinite period will not serve any useful purpose.

8. Resultantly, this petition is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial court.

MWA/M-150/L Bail granted.