BAIL U/S 489-F PPC
P L D 2016 Supreme Court 171
Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ
Malik NAZIR AHMED---Petitioner
Versus
Syed SHAMAS-UL-ABBAS and others---Respondents
Criminal Petition No.348-L of 2015, decided on 22nd December, 2015.
(Against the order dated 18-3-2015 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in
Criminal Miscellaneous No.517-B of 2015.)
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---
Grounds---Pre-arrest bail granted by High Court on the ground that offence under S.489-F, P.P.C. did not entail
any recovery to be affected from the accused person, and if recovery was not to be affected from accused in a
criminal case then he could not be refused pre-arrest bail---Legality---Such generalization/ approach adopted by
the Judge-in-Chamber of the High Court could not be approved as it militated against the scheme of Criminal
Procedure Code, 1898 because arrest of an accused person during investigation of a criminal case was not
meant only for affecting recovery from his possession but such arrest was made for the purpose of investigating
the circumstances of the case and collecting evidence and recovery, where required, was only one of the
components of the investigation---While investigating an offence physical custody of an accused person may be
required by the investigating agency for ascertaining and verifying the circumstances being alleged by the
complainant party and even for confirmation of the circumstances of the case put forth and advanced by the
accused person in his defence---Supreme Court remanded the case to the High Court for a fresh decision on the
pre-arrest bail application filed by accused on the merits of the case, and directed that till a fresh decision on the
matter, the accused shall remain on ad interim pre-arrest bail, which may or may not be confirmed by the High
Court depending upon the final decision of the matter on merits.
Abdul Sattar v. The State and another PLD 2013 Lah. 173 disapproved.
Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Petitioner.
Malik Ejaz Hussain Goredi, Advocate Supreme Court and A.H. Masood, Advocate-on-Record with
Respondent No.1 in person.
Asjad Javed Ghural, Addl. Prosecutor General, Punjab for the State.
Date of hearing: 22nd December, 2015.
ORDER
ASIF SAEED KHAN KHOSA, J.--Through this petition Malik Nazir Ahmed petitioner/complainant has
sought leave to appeal against the order dated 18.03.2015 passed by a learned Judge-in-Chamber of the Lahore
High Court, Bahawalpur Bench, Bahawalpur in Criminal Miscellaneous No. 517-B of 2015/BWP whereby
respondent No. 1 namely Syed Shamas-ul-Abbas had been admitted to pre-arrest bail in case FIR No. 153
registered at Police Station Saddar Ahmedpur East, District Bahawalpur on 19.10.2014 in respect of an
offence under section 489-F, P.P.C.
2. We have heard the learned counsel for the parties and have gone through the relevant record of the case
with their assistance.
3. We note that respondent No. 1 had been admitted to pre-arrest bail by the learned Judge-in-Chamber of
the High Court primarily upon the ground that an offence under section 489-F, P.P.C. did not entail any
recovery to be affected from the accused person and if recovery is not to be affected from an accused person in
a criminal case then he cannot to be refused pre-arrest bail in such case. While holding so the learned Judge-inChamber
had referred to his own order passed in the case of Abdul Sattar v. The State and another (PLD 2013
Lahore 173) wherein similar views had earlier on been expressed in some other case. We have found the said
approach adopted by the Hon'ble Judge to be militating against the scheme of the Code of Criminal Procedure
because it had not been appreciated by the Hon'ble Judge that arrest of an accused person during the
investigation of a criminal case is not meant only for effecting recovery from his possession but such arrest is
made for the purposes of investigating the circumstances of the case and collecting evidence and recovery,
where required, is only one of the components of the investigation. If the view held by the Hon'ble Judge of the
High Court is allowed to hold the field then pre-arrest bail may not be refused to an accused person even in a
case of rape or in a case of murder by throttling or even in a case of planning for terrorism where recovery may
not be relevant and that surely was never the intention of the law. While investigating an offence physical
custody of an accused person may be required by the investigating agency for ascertaining and verifying the
circumstances being alleged by the complainant party and even for confirmation of the circumstances of the
case put forth and advanced by the accused person in his defence. It cannot, therefore, be said with any
generalization that an investigation into a criminal offence is meant only for effecting a recovery from the
accused person and in a case where no recovery needs to be effected such accused person cannot be arrested or
cannot be refused bail. Such generalization by the Hon'ble Judge of the High Court has, therefore, been found
by us to be not a proper generalization to receive approval of this Court. In this view of the matter the legal
position declared by the Hon'ble Judge in the reported case of Abdul Sattar (supra) is disapproved. Apart from
what has been observed above we note that the view held by the Hon'ble Judge of the High Court eliminates the
consideration of mala fide on the part of the police or the complainant party which consideration is one of the
prerequisites for pre-arrest bail in a case involving a non-bailable offence. This petition is consequently
converted into an appeal and the same is allowed, the impugned order passed by the learned Judge-in-Chamber
of the High Court on 18.03.2015 in Criminal Miscellaneous No.517-B of 2015/BWP is set aside, the matter is
remanded to the Lahore High Court, Bahawalpur Bench, Bahawalpur for a fresh decision of Criminal
Miscellaneous No. 517-B of 2015/BWP on the merits of the case and it is ordered that till a fresh decision of the
said matter respondent No.1 shall remain on ad-interim pre-arrest bail in the relevant criminal case which may
or may not be confirmed by the High Court depending upon the final decision of the matter on its merits. The
petitioner and respondent No. 2 are directed to appear before the Lahore High Court, Bahawalpur Bench,
Bahawalpur on 14.01.2016. If Mr.Justice Ibad-ur-Rehman Lodhi of the Lahore High Court, who had passed the
impugned order in the present case, is not holding Court at the Bahawalpur Bench of the Lahore High Court on
the said date then the matter may be fixed before and decided by any other Hon'ble Judge holding Court at that
Bench on that date. The office is directed to send a copy of this order to Mr. Justice Ibad-ur-Rehman Lodhi of
the Lahore High Court, Lahore for his information and guidance.
MWA/N-13/S Case remanded
P L D 2016 Supreme Court 171
Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ
Malik NAZIR AHMED---Petitioner
Versus
Syed SHAMAS-UL-ABBAS and others---Respondents
Criminal Petition No.348-L of 2015, decided on 22nd December, 2015.
(Against the order dated 18-3-2015 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in
Criminal Miscellaneous No.517-B of 2015.)
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---
Grounds---Pre-arrest bail granted by High Court on the ground that offence under S.489-F, P.P.C. did not entail
any recovery to be affected from the accused person, and if recovery was not to be affected from accused in a
criminal case then he could not be refused pre-arrest bail---Legality---Such generalization/ approach adopted by
the Judge-in-Chamber of the High Court could not be approved as it militated against the scheme of Criminal
Procedure Code, 1898 because arrest of an accused person during investigation of a criminal case was not
meant only for affecting recovery from his possession but such arrest was made for the purpose of investigating
the circumstances of the case and collecting evidence and recovery, where required, was only one of the
components of the investigation---While investigating an offence physical custody of an accused person may be
required by the investigating agency for ascertaining and verifying the circumstances being alleged by the
complainant party and even for confirmation of the circumstances of the case put forth and advanced by the
accused person in his defence---Supreme Court remanded the case to the High Court for a fresh decision on the
pre-arrest bail application filed by accused on the merits of the case, and directed that till a fresh decision on the
matter, the accused shall remain on ad interim pre-arrest bail, which may or may not be confirmed by the High
Court depending upon the final decision of the matter on merits.
Abdul Sattar v. The State and another PLD 2013 Lah. 173 disapproved.
Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Petitioner.
Malik Ejaz Hussain Goredi, Advocate Supreme Court and A.H. Masood, Advocate-on-Record with
Respondent No.1 in person.
Asjad Javed Ghural, Addl. Prosecutor General, Punjab for the State.
Date of hearing: 22nd December, 2015.
ORDER
ASIF SAEED KHAN KHOSA, J.--Through this petition Malik Nazir Ahmed petitioner/complainant has
sought leave to appeal against the order dated 18.03.2015 passed by a learned Judge-in-Chamber of the Lahore
High Court, Bahawalpur Bench, Bahawalpur in Criminal Miscellaneous No. 517-B of 2015/BWP whereby
respondent No. 1 namely Syed Shamas-ul-Abbas had been admitted to pre-arrest bail in case FIR No. 153
registered at Police Station Saddar Ahmedpur East, District Bahawalpur on 19.10.2014 in respect of an
offence under section 489-F, P.P.C.
2. We have heard the learned counsel for the parties and have gone through the relevant record of the case
with their assistance.
3. We note that respondent No. 1 had been admitted to pre-arrest bail by the learned Judge-in-Chamber of
the High Court primarily upon the ground that an offence under section 489-F, P.P.C. did not entail any
recovery to be affected from the accused person and if recovery is not to be affected from an accused person in
a criminal case then he cannot to be refused pre-arrest bail in such case. While holding so the learned Judge-inChamber
had referred to his own order passed in the case of Abdul Sattar v. The State and another (PLD 2013
Lahore 173) wherein similar views had earlier on been expressed in some other case. We have found the said
approach adopted by the Hon'ble Judge to be militating against the scheme of the Code of Criminal Procedure
because it had not been appreciated by the Hon'ble Judge that arrest of an accused person during the
investigation of a criminal case is not meant only for effecting recovery from his possession but such arrest is
made for the purposes of investigating the circumstances of the case and collecting evidence and recovery,
where required, is only one of the components of the investigation. If the view held by the Hon'ble Judge of the
High Court is allowed to hold the field then pre-arrest bail may not be refused to an accused person even in a
case of rape or in a case of murder by throttling or even in a case of planning for terrorism where recovery may
not be relevant and that surely was never the intention of the law. While investigating an offence physical
custody of an accused person may be required by the investigating agency for ascertaining and verifying the
circumstances being alleged by the complainant party and even for confirmation of the circumstances of the
case put forth and advanced by the accused person in his defence. It cannot, therefore, be said with any
generalization that an investigation into a criminal offence is meant only for effecting a recovery from the
accused person and in a case where no recovery needs to be effected such accused person cannot be arrested or
cannot be refused bail. Such generalization by the Hon'ble Judge of the High Court has, therefore, been found
by us to be not a proper generalization to receive approval of this Court. In this view of the matter the legal
position declared by the Hon'ble Judge in the reported case of Abdul Sattar (supra) is disapproved. Apart from
what has been observed above we note that the view held by the Hon'ble Judge of the High Court eliminates the
consideration of mala fide on the part of the police or the complainant party which consideration is one of the
prerequisites for pre-arrest bail in a case involving a non-bailable offence. This petition is consequently
converted into an appeal and the same is allowed, the impugned order passed by the learned Judge-in-Chamber
of the High Court on 18.03.2015 in Criminal Miscellaneous No.517-B of 2015/BWP is set aside, the matter is
remanded to the Lahore High Court, Bahawalpur Bench, Bahawalpur for a fresh decision of Criminal
Miscellaneous No. 517-B of 2015/BWP on the merits of the case and it is ordered that till a fresh decision of the
said matter respondent No.1 shall remain on ad-interim pre-arrest bail in the relevant criminal case which may
or may not be confirmed by the High Court depending upon the final decision of the matter on its merits. The
petitioner and respondent No. 2 are directed to appear before the Lahore High Court, Bahawalpur Bench,
Bahawalpur on 14.01.2016. If Mr.Justice Ibad-ur-Rehman Lodhi of the Lahore High Court, who had passed the
impugned order in the present case, is not holding Court at the Bahawalpur Bench of the Lahore High Court on
the said date then the matter may be fixed before and decided by any other Hon'ble Judge holding Court at that
Bench on that date. The office is directed to send a copy of this order to Mr. Justice Ibad-ur-Rehman Lodhi of
the Lahore High Court, Lahore for his information and guidance.
MWA/N-13/S Case remanded
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