THE HIGH COURT OF SINDH AT KARACHI
Cr. Misc. Application No.158 of 2016
Complainant : Muhammad Asif
Through Mr. Ahmed Ali Ghumro, Advocate
Respondent No.1 : The State through Mr. Muntazir Mehdi, DPG
Respondent No.2 : Shahzad Hussain
Through Syed Muhammad Ahsan, Advocate
Date of hearing : 02.4.2018
Date of Order : 02.4.2018
ORDER
Abdul Maalik Gaddi, J: Through this Cr. Misc. Application, the complainant has assailed the legality and propriety of the Order dated 22.8.2016 passed by the learned VII-Additional Sessions Judge, Karachi (South) in Cr. Bail Application No.761/2016 culminating under FIR No.228/2016 registered under Sections 420, 468 and 408 PPC at PS Preedy, Karachi, whereby the learned trial Court after hearing the parties’ counsel and through impugned order confirmed the interim pre-arrest bail in favour of respondent No.2.
2. Facts necessary for the disposal of this Cr. Misc. Application are that the respondent No.2 being Sale Manager of the complainant company and during audit of the company in the year 2015, it came into the knowledge of the company that accused Shahzad Hussain had misused the power granted to him by the company and by using such power illegally prepared the forged Deliveries Challans and sold out the motorcycles to unknown persons and embellished an amount of Rs.13,83,894/- and used the same for his personal gain.
3. It appears from the record that respondent No.2 (Shahzad Hussain) was granted interim bail and the same was confirmed through impugned order, which has been challenged by the complainant through this Cr. Misc. Application.
4. It is contended by the learned counsel for complainant that the learned trial Court has passed the impugned order in a hurry manner without considering the material available/ produced before him, not only this, learned trial Court has passed the impugned order without considering the documents attached by the accused himself, which too connects him in connection with the above crime. He further submits that the independent witnesses during the course of investigation has fully implicated the respondent No.2 due to commit fraud and misappropriate the amount. Therefore, according to learned counsel for complainant, the impugned order is liable to be set aside and the bail already granted in favour of the respondent No.2 may be cancelled.
5. In support of arguments, learned counsel for complainant has cited caselaws, which are as under:
(i) 2003 SCMR 1966 - (Rahim Bukhsh vs. Shah Nawaz and another);
(ii) 2009 SCMR 786 – (Mst. Noor Habib vs. Saleem Raza and others;
(iii) 2009 SCMR 1179 (Haji Gul Rehman vs. Imran-ud-Din and another);
(iv) 2010 SCMR 580 – (The State/ anti-Narcotic vs. Rafiq Ahmad Channa);
(v) 2004 SCMR 183 – (WAPDA vs. M.M. Chandio, Ex-Chief Engineer WAPDA);
(vi) 1997 SCMR 1293 – (The State through Collecrtor, Customs and Central Excise, Peshawar vs. Sarfraz Khan); and
(vii) 2002 SCMR 442 – Muhammad Siddique vs. Imtiaz Begum and 2 others.
6. Learned DPG assisted by learned counsel for respondent No.2 has supported the impugned order by arguing that the impugned order is perfect in law and on fact. He further submits that in this matter, alleged incident took place on 01.12.2015, whereas the FIR was lodged on 03.5.2016 after the delay of about more than 05 months, for which no explanation has been furnished. Therefore, according to him false implication of the respondent No.2 in this case could not be ruled out. He further submitted that in this matter one witness has been examined, trial has been commenced and the offences under which the respondent No.2 is facing trial either bailable or their punishment do not fall within the prohibitory clause of Section 497 CrPC. He further submits that the learned trial Court while passing the impugned order has considered all the facts involved in the case.
7. I have heard the learned counsel for parties and perused the record.
8. On a close scrutiny of the material placed on file, I am of the opinion that prima facie reasonable grounds do not exist for believing that the respondent No.2 has committed the offence. The reasons for granting bail to the respondent No.2 are quite sufficient/ convincing and the Additional Sessions judge has recorded a speaking order. In the circumstances, I do not see any justification as to why discretion exercised by the Additional Sessions Judge judiciously be interfered with by this Court.
9. As observe above, all the offences in which the respondent No.2 is facing trial either bailable or their punishment do not fall within the prohibitory clause of Section 497 CrPC. No exceptional grounds appears in this case to withhold bail of the respondent No.2. Even otherwise, strong and exceptional grounds are required for cancellation of bail granted by a Court of competent jurisdiction because the provisions of Section 497(5) CrPC are not at all punitive. Resultantly, there is no compulsion even for cancellation of bail granted in cases which are punishable with death/ life imprisonment for 10 years.
10. In the circumstances, I am of the view that this Cr. Misc. Application for the cancellation of bail is without any substance. The same is accordingly dismissed. 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. As observed in this case one witness has been examined, therefore, if during the pendency of this case, if the accused misuses the bail, then trial Court shall consider for cancellation of bail of the accused in accordance with law. The caselaws cited by learned counsel for complainant have been perused and considered by me but did not find applicable to the facts of the present case. Since the matter pertains to 2016, therefore, trial Court is directed to proceed the matter expeditiously and decide the same within the period of 03 months with further direction not to grant any unnecessary adjournment to either side. Compliance report must reach to this Court through MIT.
asim/pa