2010 Y L R 724 06/11/2023, 9:59 AM
2010 Y L R 724
[Lahore]
Before Habib Ullah Shakir, J
AMNA MUSTANSAR---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.5673-B of 2009, decided on 5th June, 2009.
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant
of---Complainant had failed to produce the copy of original cheque despite clear-cut direction of the
Investigating Officer---Accused being a lady, her case was covered under the Women Protection Act,
2006, entitling her for pre-arrest bail---Question of mala fide, usually was raised where accused on the
garb of bail before arrest wanted to avoid investigation; and also wanted to avoid the recovery, but in the
present case there was no question of recovery of cheque as the same was already with the prosecution---
Just for the purpose of sending accused to jail without any further investigation, bail before arrest could
not be refused when no further investigation was to be made---Bail before arrest could not be refused
when no recovery was to be made---Question of dishonest issuance of cheque and its dishonest
dishonouring, could not be determined at bail stage, but same would be determined at the time of trial---
Offence though was not bailable, but High Court could not ignore the fact that the offence did not fall
within prohibitory clause of S.497, Cr. P. C.; and in absence of exceptional circumstances bail before
arrest could even be claimed as of right---Accused had also joined the investigation and she was no more
required for the purpose of investigation---Pre-arrest bail already granted to accused, was confirmed in
circumstances.
Abdul Khaliq Safrani for Petitioner.
Ch. Fiaz Ahmad, Dy. P.-G. for the State.
Syed Imran Ali for the Complainant.
ORDER
HABIB ULLAH SHAKIR, J.---Though the instant petition, the petitioner seeks pre-arrest bail case
F.I.R. No.44/2009, dated 31-1-2009 under section 489-F, P.P.C. registered at Police Station Model
Town, Lahore.
2. Briefly stated facts as narrated in the F.I.R. are that the petitioner issued a cheque Bearing
No.098061 valuing Rs.8,00,000 in favour of complainant for re-payment towards some transaction
pertaining to a car but latter on the said cheque was dishonoured.
3. Learned counsel for the petitioner argued that the petitioner has wrongly been entangled in this false
and frivolous case with mala fide intention and ulterior motives of the complainant in connivance of the
police. In fact the same complainant earlier got registered three F.I.Rs. bearing Nos.49/2008, 50/2008
and 51/2008 under section 489-F, P.P.C. at Police Station Model Town, Lahore against the husband of
the petitioner namely Mustansar Yousaf Sukhera but later on, Rai Zameer D.S.P. CIA and Ejaz Dogar,
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2010 Y L R 724 06/11/2023, 9:59 AM
the petitioner namely Mustansar Yousaf Sukhera but later on, Rai Zameer D.S.P. CIA and Ejaz Dogar,
D.S.P. CIA Model Town, Lahore adopted coercive measures asking the petitioner to issue open cheques
from her account otherwise her husband would have to suffer and would be bumped off in a fake police
encounter. The above mentioned cheques have been taken from the petitioner under coercion and the
said cheques were never issued in the name of the complainant. The said D.S.Ps. handed over two
cheques to the complainant and in this regard, the complainant sworn an affidavit before the Illaqa
Magistrate and expressed no objection if bails is granted to the petitioner's husband and the post arrest
bail to Mustansar Yousaf Sukhera, husband of the petitioner was allowed. The petitioner is a household
lady having attached baby in her lap and offence in view of the latest amendment in the light of
Women Protection. Act is bailable. The complainant has failed to bring on record the original cheques.
4. The learned D.P.G. assisted by, learned counsel for the complainant opposed the bail application
contending that the petitioner is nominated in the F.I.R. with specific role of issuing the cheque. The
execution of the impugned cheque and being dishonoured by the concerned bank is not denied by the
petitioner. A bank certificate in this regard has also been placed on the record. P.Ws. in their statement under
section 161 Cr.P.C. have also corroborated the version of the complainant. The petitioner has not joined the
investigation of the case.
5. Heard. Record perused.
6. Admittedly, one cheque was issued on 15-1-2009 while the other on 16-1-2009 pertaining to M.C.B.
Shadman Colony Branch, Lahore. The complainant has failed to produce the copy of original cheque despite
clear-cut direction by the I.O. vide Zimni No.1 dated 18-2-2009. The statement of Mussaddaq Hussain,
Manager H.B.L. which was recorded on 5-3-2009 is not a corroborative piece of evidence to strengthen the
case of the prosecution, however, the statement of Manager M.C.B. can be fruitful for the prosecution. On
14-4-2009 vide Zimni No.8, the complainant was again directed to produce the original cheque but she has
failed to do so. The petitioner is a lady and as such her case is covered under the Women Protection Act VI of
2006, entitling her for pre-arrest bail. The question of mala fide usually is raised where the accused in the
garb of bail before arrest wanted to avoid investigation and also wanted to avoid the recovery but in the
present case there is no question of recovery of a cheque in dispute as the same was already with the
prosecution. Just for the purpose of sending accused to jail without any further investigation bail before arrest
could not be refused when no further investigation is to be made. Bail before arrest could not be refused when
no recovery of amount under the cheque is yet to be made. Question of dishonest issuance of cheque and its
dishonest dishonouring could not be determined at bail stage. The same would be determined at the time of
trial. Though the offence is not bailable yet this Court cannot ignore the fact that the offence does not fall
within prohibitory clause of section 497, Cr.P.C. and in the absence of exceptional circumstances bail before
arrest could even be claimed as of right. The petitioner has also joined the investigation and such she is no
more required for the purpose of investigation.
7. In this view of the matter, the instant petition is accepted and ad interim pre-arrest bail already granted to
the petitioner by this Court vide order dated 26-5-2009, is hereby confirmed subject to her furnishing bail
bond in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of
learned trial Court.
H.B.T./A-337/L Bail confirmed.
;
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