IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.783 of 2018
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
FOR HEARING OF BAIL APPLICATION
Date of hearing: 11.6.2018
Date of Order: 11.6.2018
Mr. Muhammad Irfan, advocate for applicant
Mr. Ali Afsar Jan, advocate for complainant
M/s Sagheer Abbasi & Tanya Allah Dad, APG along with
ASI/ IO Bilal Ahmed PS Hyderi Market
ORDER
Abdul Maalik Gaddi, J. Having remained unsuccessful in obtaining his release on bail from the trial Court in Crime No.150/2017 registered under Section 489-F PPC at PS Hyderi Market, Karachi. Now the applicant Syed Rehan Hashmi son of Abdul Mateen Hashmi is seeking his release on bail through instant bail application.
2. The facts of the prosecution story are that the complainant Nasrullah Khan lodged the FIR to the effect that the accused had received goods of clothes to the tune of Rs.86,00,000/- (Rupees eighty six lacs) and for repayment of said amount, the accused issued 05 cheques of different dates and different amounts to the complainant and when these cheques were presented before the NIB Bank, Hyderi Branch, North Nazimabad, Karachi for encashment, the said cheques were dishonoured.
3. It is contended by learned counsel for applicant that the case against applicant/ accused is false and has been registered due to business dispute; that the applicant/ accused is behind the bars since his arrest, but up till now, no substantial progress has been made in trial; that challan against applicant/ accused has been submitted before the trial Court and this applicant/ accused is no more required for investigation and co-accused Mst. Shahla Naz wife of the applicant almost on same grounds granted bail by the trial Court, therefore, according to him this applicant/ accused is also entitled for same relief; that the punishment of the offence under which the applicant/ accused has been booked is not more than 03 years, thus according to him case of the applicant/ accused does not fall within the prohibitory clause of Section 497 CrPC, therefore, on this ground grant of bail is a rule and its refusal an exception. No exceptional grounds appear in this case to withhold the bail of the applicant/ accused. Reliance in this respect is placed on the cases of Tariq Bashir vs. The State reported in PLD 1995 SC 34 and Khalil Ahmed Soomro vs. The State reported in PLD 2017 SC 730; that a Civil Suit No.1399/2017 filed by the applicant against the complainant Nasrullah Khan in respect of cancellation of these cheques is pending before the Senior Civil Judge, Karachi (Central) and the matter is subjudice and it is yet to be determined whether these cheques have been issued by applicant and used by the complainant party malafidely. Hence under these facts and circumstances, he prayed for bail.
4. Learned APG assisted by the learned counsel for complainant has opposed this bail application by arguing that the accused had committed the alleged offence by giving forged cheques to the complainant and huge amount of Rs.86,00,000/- (Rupees eighty six lacs) is involved in the instant matter. He has further argued that if applicant is admitted to bail then he would either to abscond or tamper with prosecution evidence and ultimately, the complainant would suffer. He, however, supported the impugned order passed by the trial Court.
5. I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.
6. It is an admitted fact that the case has been challaned. This applicant/ accused is no more required for investigation. It appears from the record that the case is based upon documentary evidence, which is, in fact, in possession of the prosecution, therefore, no question does arise for tampering the evidence at the hands of the applicant. The whole case of the prosecution based upon the evidence of complainant and the witnesses who belongs to the Police, therefore, their evidence is minutely required to be scrutinized at the time of trial whether the offence/ incident has been occurred in a manner as stated in FIR or otherwise. Co-accused Mst. Shahla Naz wife of the applicant has already been granted bail by the trial Court almost on same facts and grounds. Therefore, following the rule of consistency, this applicant/ accused is also entitled for same relief. It also appears from the record that there is a civil suit filed by the applicant in the competent Court of law against complainant is pending with regard to cancellation of said cheques for adjudication. This fact has not been denied by the counsel for complainant. The applicant/ accused is behind the bars since his arrest. No substantial progress in trial has been made so far in this case. Nothing is available on record to show that the present applicant/ accused is previously convicted or he is desperate, dangerous and hardened criminal. In view of the above, I am of the view that the case of the applicant/ accused requires further inquiry.
7. Keeping in view of 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, 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 laid down by Hon’ble Supreme Court of Pakistan in 1999 SCMR 2589, wherein it was held that offences involving lesser punishment of three years, the applicant/ accused may be admitted to bail. Accordingly, the present applicant/ accused is admitted to bail subject to his furnishing a solvent surety in the sum of Rs.5,00,000/- and PR bond in the like amount to the satisfaction of trial Court. When this order is being dictated in open Court, learned counsel for complainant submits that he would be satisfied for grant of bail in favour of the applicant/ accused, if applicant is ordered to deposit/ surrender his passport before the Nazir of this Court. Therefore, beside furnishing surety, the applicant/ accused shall also deposit his passport before the Nazir of this Court. Since the simple question of fraud or otherwise is involved in this case, therefore, trial Court is directed to proceed this matter expeditiously and decide the same within the period of three months after receipt of this order. No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II.
8. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case.
Judge
asim/pa