489-F IN PROHIBITORY CLAUSE (BAIL GRANT OF)

1. 2010 M L D 106 !L"#$%&'

B&($%& C#. I()*+#"% H,--"*./ 0
MUHAMMAD RIA1 ---P&)*)*$.&% 2&%-,- THE STATE ".3 ".$)#&%---R&-4$.3&.)-
Criminal Miscellaneous No. 3192-B of 2009, decided on 7th October, 2009.
(") C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------.!97---"enal Code #$%& of 1'(0), .!'9-*---
+ishonourin, of che-ue---Bail, ,rant of---.ccused /as behind the bars for the last fi0e months---
.ccused /as not a 1re0ious con0ict---Offence did not fall /ithin the 1rohibitor2 clause of .!97#1),
Cr.".C. and ,rant of bail in such li3e cases /as a rule and refusal an e4ce1tion---Case of accused
ha0in, become of bail, he could not be de1ri0ed of his libert2 sim1l2 for the reason that he had
remained an absconder---*actum of alle,ed absondence of accused /as not an e4ce1tional
circumstance to /arrant refusal of relief of bail to him---Bail /as allo/ed to accused accordin,l2.
5ari- Bashir and 6 others 0. 5he tate "%+ 1996 C 3! ref.
(8) C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------.!97---"enal Code #$%& of 1'(0), .!'9-*---
+ishonourin, of che-ue---Bail---Case not hit b2 1rohibitor2 clause of .!97, Cr.".C.---7eneral rule---
8here the alle,ed offence does not fall /ithin the 1rohibitor2 clause of . !97#1), Cr.".C. ,rant of bail
is a rule and its refusal is an e4ce1tion.
5ari- Bashir and 6 others 0. 5he tate "%+ 1996 C 3! ref.
(7) C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------.!97---"enal Code #$%& of 1'(0), .!'9-*---
+ishonourin, of che-ue---Bail---.bscondence of accused---9ffect---8hen case of an accused
becomes of bail, then he cannot be de1ri0ed of his libert2 sim1l2 because he had remained an
absconder.
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2. 2010 P C%. L 0 904 !L"#$%&' B&($%& 1,83"-),6-H,--"*./ 0
MUHAMMAD NAEEM----P&)*)*$.&% 2&%-,- THE STATE---R&-4$.3&.)
Criminal Miscellaneous No.'029;B of 200', decided on 'th October, 200'.
(") C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------. !97---"enal Code #$%& of 1'(0), s.!20;!(' <
!'9-*---Cheatin,, for,er2 and dishonestl2 issuin, a che-ue---Bail, refusal of--Contentions of accused
/ere that in the e0ent of re,istration of the case under s.!20;!(', ".".C., there /as no 0alid occasion for
dra,,in, accused in another case under .!'9-*, ".".C. on the same facts and circumstances, and that
same /as misconcei0ed, because both the matters had different and inde1endent entit2---=nitiall2 accused
had alle,edl2 1ersuaded the com1lainant to 1urchase the land;1lot for >s. (6 lacs as a,ainst the alle,ed
actual 1rice of >s.2(,'0,000---et of offence under .!20, ".".C. ended here and that /arranted
re,istration of a case under .!20, ".".C. etc. onl2--Other set of facts and the offence cro11ed u1 /hen
subse-uentl2 /ith a 0ie/ to settle the matter accused issued the t/o che-ues and the same /ere
dishonoured on 1resentation to the Ban3---=ssuance of che-ue /ith the alle,ed dishonest intention /as an
inde1endent offence /hich 0alidl2 /arranted re,istration of a case under .!'9-*, ".".C.--- 8here the
0arious alle,ed criminal actions of a 1erson had ,i0en rise to more than one offence and each offence had
its o/n inde1endent ince1tion, re,istration of inde1endent cases for ?each of such offences /ould not be
1rohibited b2 la/-- Offence committed in the same series of transactions of fact could be @ointl2
1rosecuted b2 one *.=.>., but /hen a subse-uent offence had been committed inde1endentl2, it /as not
necessar2 that it be clubbed /ith the earlier offence;*.=.>.--->e,istration of inde1endent *.=.>. under
.!'9-*, ".".C. /as a 0alid instrument for 1uttin, the machiner2 of la/ into force because the
commission of fraud /hich /as the sub@ect-matter of earlier *.=.>. /as based u1on misre1resentation of
facts and e4tortion of e4tra mone2 from the com1lainant and the subse-uent issuance of the che-ues /ith
dishonest intention /as a fresh offence liable under .!'9-*, ".".C..---.s t/o different cases had been
re,istered in relation to the ,rie0ance of the com1lainant, accused /as not entitled for the ,rant of bail.
(8) C%*5*."6 )%*"6-------Offence committed in the same series of transactions of fact could be @ointl2
1rosecuted b2 one *.=.>., but /hen a subse-uent offence had been committed inde1endentl2, it /as not
necessar2 that it be clubbed /ith the earlier offence;*.=.>.
(7) C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------.!97---"enal Code #$%& of 1'(0), s.!20;!(' < !'9-
*---"ost-arrest bail---Bail, refusal of---Contention of accused /as that no liabilit2 a,ainst him arose
under .!'9-*, ".".C. as the matter 1rimaril2 from its ince1tion /as a business transaction bet/een the
1arties---&alidit2---No doubt the normal business transaction should ne0er be made the basis or sub@ect
of criminal liabilit2 and dis1utes of such nature should better be resol0ed throu,h the measures other than
the criminal liti,ation, but the 1resent case could not be termed as a 1ure ci0il dis1ute as it in0ol0ed the
alle,ed mens rea of accused re,ardin, the alle,ed dishonest and fraudulent re1resentation of facts and
then of dishonestl2 issuin, the che-ues /hich /ere ,oin, to be bounced later on---=n circumstances the
1rinci1le that the matter of business transactions, the liabilit2 under .!'9-*, ".".C. could not be 1laced
u1on accused, could not be a11lied to the rescue of accused---Contention of accused that the nature of
1a2ment ha0in, not 2et been determined, the case /as of one of further en-uir2 a,ainst accused /as
misconcei0edA because 1a2ments as such /ere neither dis1uted nor their -uantum /as in contro0ers2---
.ccused recei0ed >s. (6,00,000 and issued che-ues for >s.3',20,000---Che-ues ha0in, been issued b2
accused re,ardin, the dischar,e of liabilit2, there /as no ambi,uit2 about the nature of the 1a2ment nor
for that reason it could be termed as a case of further en-uir2 a,ainst accused.
(3) C%*5*."6 P%$7&3,%& C$3& (2 $( 1898)-------. !97---"enal Code #$%& of 1'(0), s.!20;!(' <
!'9-*----Bail, refusal of---Offence alle,ed a,ainst accused carried a liabilit2 for a sentence ./hich could
e4tend to im1risonment for three 2ears and in said circumstances the 1rohibition of .!97, Cr.".C. /as
not attracted to itA but it could also not be denied thatA in the cases /hich /ere not co0ered b2 the
1rohibitor2 clause of .!97, Cr.".C., ,rant of bail /as a rule and refusal /as an e4ce1tion, 2et it also
could not be deniedA that bona fide or mala fide of the 1arties to a liti,ation /ere ne0er irrele0ant---Mala
fide /ould 0itiate the most sacred transactions---Out and out mala fide /hich in@ured not onl2 the
0aluable ri,hts of a 1art2, but also caused se0ere mental and 1s2cholo,ical a,on2 to the affected 1ersons
in addition to an2 financial loss had also to be ,i0en due consideration---=f the 1eo1le /er e sim1l2
allo/ed concession, such as the bail, on the mere ,round of absence of 1rohibition of .!97, Cr.".C.
/hile the circumstances had sho/n the ,ra0it2 of the matter not onl2 for an indi0idual, but s1oilin, the
economic and social life of his /hole famil2, that could tend to 1er1etuate the commission of offence of
the same nature---.lle,ed e4tortion of hea02 amount of >s.3',20,000 su11lemented b2 dishonest
issuance of unhol2 che-ues rendered it a case of ,rie0ous nature---7rant of bail bein, a discretionar2
concession /ould not be /arranted in such situation.
8aseem Bari 0. 5he tate 200' B%> 7(0 and Muhammad 5ari- Ca0ed 0. 5he tate 200' B%> 9!7 ref.