THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Application No.387 of 2019

 

Applicant              :         Abdul Rab Motiwala son of Muhammad

Siddique through Mr. Khurram Lakhani, Advocate.

 

Respondent          :         The State through Mr. Saleem Akhtar

Burriro, Additional Prosecutor General, Sindh.

 

Complainant        :         Javed Iqbal son of Muhammad Iqbal Memon,

through   Mr.  Muhammad  Hafeez  Sandhu, Advocate, who has filed Vakalatnama on his behalf, which is taken on record.

 

Date of hearing     :         22.04.2019

 

Date of Decision   :         22.04.2019

 

 

ORDER

 

 

ABDUL MALIK GADDI J. Applicant/accused Abdul Rab Motiwala is present on interim pre-arrest bail granted to him by this Court vide order dated 25.03.2019 in Crime No.57 of 2019 registered at police station Bahadurabad, Karachi, under Sections 489-F/420/34, PPC. Today this bail application is fixed for confirmation or otherwise.

 

2.       The allegation against the present appellant is that he had handed over a cheque bearing No.110654483 (undated) for amount of Rs.500,000/-, issued by accused Kaniz Fatima Motiwala, to the complainant for encashment and when this cheque was presented by the complainant in Habib Metropolitan Bank Gulshan Chowrangi Branch, Karachi, the same was dishonored.

 

3.       It is stated by the learned Counsel for the applicant that case against the applicant is false and has been registered due to business enmity; that incident took place on 17.01.2019 during banking hours, while FIR of the incident was lodged on 04.03.2019 at about 03:35 p.m., after the delay of about two months for which no satisfactory explanation has been furnished by the complainant, therefore, according to him, false implication of applicant in this case with due deliberation and consultation could not be ruled out; that the offence has not been taken place at all; that offence for which the applicant implicated in this case under Section 489-F/420/34, PPC, for which punishment does not fall under the prohibitory clause of Section 497, Cr.P.C. Learned Counsel further submitted that challan has been submitted and investigation has been completed, hence, applicant is not required for further investigation and it is yet to be proved by evidence that who has involved in this case as according to him co-accused Kaniz Fatima has been granted bail by trial Court and the case of applicant is on better footings to Kaniz Fatima.

 

4.       Conversely, learned Additional Prosecutor General, Sindh assisted by the Counsel for complainant, opposed the bail application on the ground that applicant is nominated in FIR with specific allegations for committing cheating and forgery, and if the applicant enlarge on bail, there is apprehension that he will repeat the same incident.

 

5.       I have given my anxious thoughts to the contentions raised at the bar and also gone through the entire record.

 

6.       It reveals from the record that in this matter challan has been submitted and this applicant/ accused is no more required for investigation. It also reveals from the record that the whole case of the prosecution based upon the documentary evidence which is in possession of the complainant, therefore, no question does arise for tampering the evidence at the hands of applicant/ accused. The allegation against applicant/ accused that he simply handed over the subject cheque to the complainant issued by accused Kaniz Fatima. Accused Kaniz Fatima has already been granted bail by the trial Court, the said order has not been challenged before any higher forum. Thus it is yet to be proved by recording of evidence whether present applicant is involved in this case as stated by complainant or otherwise. Till then, in my opinion, the applicant/ accused has made out a case for confirmation of his bail. Beside this the punishment of the offence for which the present applicant/ accused has been booked in this case does not fall within the prohibitory clause of Section 497 CrPC and it is settled principle of law that if the punishment does not fall within the prohibitory clause of Section 497, grant of bail is a rule and refusal an exception, as held in PLD 1995 SC 34 (Tariq Bashir vs. The State). No exceptional circumstances appear in this case to withhold the bail of the applicant/ accused. Resultantly, this bail application is allowed and ad-interim pre-arrest bail already granted to the applicant is confirmed on same terms and conditions with direction to the applicant/ accused to appear before trial Court to face trial. Needless to mention here that observation, if any, in this order is tentative in nature and shall not effect the merit of the case.

 

7.       Before parting with the order, I would like to make it clear that in case the applicant/ accused misuses the bail, trial Court would be at liberty to cancel the bail of the applicant without making any reference to this Court with notice to applicant.

 

          The bail application stands disposed of in the above terms.

 

JUDGE

asim/pa