THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.383 of 2018
Applicant : Muhammad Aziz
through Mr. Shaukat Khan, Advocate
Respondent : The State through Mr. Zahoor Shah, DPG
Complainant : None present
Date of hearing : 28.3.2018
Date of Order : 28.3.2018
ORDER
Abdul Maalik Gaddi, J: Applicant/ accused is present on interim bail granted to him by this Court vide Order dated 12.3.2018. Today, this bail application is fixed for confirmation or otherwise.
2. Brief facts for the disposal of this bail application are that the complainant states in the FIR that he was running his business and applicant/ accused purchased rice from the complainant worth of Rs.12,40,938/- and applicant/ accused issued cheque bearing No.11130908 dated 06.02.2018 of his account and when the same was presented in the bank, which was dishonoured. Hence this FIR.
3. It is argued by learned counsel for applicant/ accused that the applicant/ accused is innocent and has falsely been implicated in this case. He further submits that complainant filed a private complaint against the applicant/ accused and his brother bearing No.4423/2017, wherein he prayed for taking legal action according to law. He has pressed that the bailable warrants of Rs.2,00,000/- were issued against accused, who appeared in the private complainant. It is argued that complainant with the malafide intention, forced the applicant/ accused to compromise the matter with the complainant to which applicant/ accused seeks time which was not granted and complainant with the connivance of police obtained two postdated cheques bearing No.11130908 of Rs.600,000/- and 11130909 dated 6,40,938/- and the matter was disposed off in terms of 345(6) CrPC vide order dated 03.02.2018. It is argued that complainant again approached to the court and submitted that no action was taken against the said cheques and applicant/ accused are issuing threats to the complainant of dire consequences to which the learned court passed the order while recalled his previous order dated 03.02.2018 and also directed P.S. Nabi Bux to take legal action and the instant FIR was registered against the applicant/ accused. Learned counsel for applicant/ accused pressed that the above cheques were obtained by the complaint before the trial Court under pressure of police. He has pressed that learned trial Court registered the case against the applicant as he did not commit any offence. He has pressed that for the said amount of Rs.12,40,938/- complainant obtained cheques from brother of applicant, therefore, complainant without any right obtained two other cheques. He has pressed that alleged offence under Section 420 PPC is bailable and offence under Section 489-F PPC does not fall within the prohibitory clause, hence the bail in such cases is a rule where a refusal is exception. He further submitted that the complainant due to malafide intention and ulterior motives has registered the FIR against the applicant/ accused. He lastly prayed for the confirmation of the bail of the applicant/ accused.
4. Learned DPG has raised objection for grant of bail on the ground that the name of the applicant/ accused is appearing in FIR with specific role of issuance of cheque by applicant to the complainant party which was dishonoured by the concerned bank due to “insufficient balance”, therefore, he is not entitled for grant of bail.
5. Heard the parties’ advocates and perused the record.
6. It is an admitted fact that there is a business transaction in between the parties. It also appears from the record that the whole case of the prosecution is based upon the documents/ documentary evidence and all the documents are in the custody of prosecution, therefore, there is no question arises for tampering with the case at the hands of applicant and it is yet to be determined at the time of trial whether present applicant/ accused has malafidely issued a cheque to the complainant party or otherwise. Learned counsel for applicant has placed on record the photocopy of affidavit of no objection executed by the complainant stating therein no objection on behalf of the complainant for grant of bail. Nothing is available on record to show that the present applicant/ accused was previously convicted or he is desperate, dangerous and hardened criminal. Even otherwise, the offences under which the present applicant/ accused has been booked under Section 489-F PPC, for which the punishment is 03 years, which does not come within the prohibitory clause of Section 497 CrPC.
7. Keeping in view the above facts and circumstances of the case, I am of the considered opinion that the punishment provided for such offence is three years or fine, therefore, adequate punishment in the shape of fine is also available in the provision. Even otherwise, the punishment does not come within the ambit of prohibitory clause of Section 497 CrPC. Therefore, the applicant has succeeded to make out a case for grant of bail. I am also fortified in my opinion by the dictum led down by the Hon’ble Supreme Court of Pakistan in 1999 SCMR 2589, wherein it was held that offences involved lesser punishment of three years, the accused may be admitted to bail.
8. Accordingly, the bail already granted to the applicant/ accused is hereby confirmed on same terms and conditions with direction to the applicant/ accused to appear before the trial Court to face trial.
9. Before parting with the order, I would like to make it clear that any observation made in this order is tentative in nature and shall not effect the merits of the case.
asim/pa