THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.329 of 2019

Applicant              :         Syed   Asjad   Hussain   son  of  Syed Intesar

Hussain through Mr. Aroon Parsad, Advocate.

Respondent          :         The State through Mr. Zafar Ahmed Khan,

Additional Prosecutor General, Sindh.

Complainant        :         Moiz Arshad is called absent.  

Date of hearing     :         02.05.2019

Date of Decision   :         02.05.2019

ORDER

ABDUL MALIK GADDI J. Applicant/accused Syed Asjad Hussain is present on interim pre-arrest bail granted to him by this Court vide order dated 11.03.2019 in Crime No.585 of 2018 registered at police station Ferozabad, Karachi, under Sections 489-F/420/34, PPC. Today this bail application is fixed for confirmation or otherwise.

2.       It appears from the record that earlier present applicant/accused was granted bail by this Court on 24.01.2019 in criminal bail application No.113 of 2019 in same FIR, however, unfortunately, applicant/accused could not make arrangement for requisite surety and since nobody was present there to explain the circumstances, the bail application was dismissed in non-prosecution vide order dated 05.02.2019. Hence, applicant/accused has filed this bail application. It is settled law that if first bail application is dismissed for non-prosecution, the bail can be repeated on same ground before the same Court.

3.       The allegation against the present applicant/accused is that he has allegedly issued a cheque amounting to Rs.6,150,000/- to the complainant for encashment and when this cheque was presented by the complainant in Bank Al-Falah, Khalid Bin Waleed Road Branch, Karachi, the same was dishonored.

4.       It is stated by the learned Counsel for the applicant that case against the applicant is false and has been registered due to business transaction; that actually, complainant was childhood friend of applicant/accused, who introduced Aitzaaz-ul-Haq and Saboor to applicant in the year 2017. The complainant offered the applicant/accused to invest amount in vehicles business, therefore, he invested amount in the said business, but when no any fruitful result came out, the applicant/accused demanded his amount whereupon complainant also issued a cheque to the applicant/accused, which was also dishonored by presenting the same on bank by the applicant/accused and applicant/accused had also lodged FIR against the complainant; that offence has not been taken place in a fashion, as stated in the FIR; that offence for which the applicant implicated in this case under Section 489-F/420/34, PPC, for which punishment is three years, do 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.

5.       Conversely, learned Additional Prosecutor General, Sindh opposed the bail application on the ground that applicant is nominated in FIR with specific allegations and if the applicant enlarge on bail, there is apprehension that he will repeat the same offence.

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

7.       It appears from the record that there were the business transactions in between the applicant/accused and the complainant. It also appears from the record that during business transaction, complainant had also issued a cheque to the applicant/accused, which was also dishonored on presentation before the concerned bank by the applicant/accused and applicant/accused had also lodged an FIR bearing No.738 of 2018 at police station Darakhshan, under Section 489-F, PPC against the complainant. It also reveals from the record that admittedly the cheque was issued by the applicant/accused to the complainant and same was dishonored, but it is yet to be determined by the trial Court at the time of evidence as to whether the present applicant/accused is involved in the offence of cheating or not. The punishment of the offence under which the applicant has been booked, do not fall within the prohibitory clause of Section 497, Cr.P.C., therefore, under this situation, grant of bail to the accused is a rule and its refusal is an exception, as held by the Hon’ble Supreme Court in its various pronouncements. No exceptional grounds have been pointed out by the learned Additional Prosecutor General to withhold the bail of applicant. Challan has been submitted, as such, applicant is no more required for further investigation. In such circumstances, I have come to the conclusion that applicant/accused is entitled for concession of bail. Accordingly, the interim bail granted to the applicant/accused vide order dated 11.03.2019, is hereby confirmed on same terms and conditions. However, applicant/accused is directed to appear before the trial Court on each and every date of hearing.

8.       It is made clear that above observations are tentative in nature and would not be influenced the trial Court while deciding the case of applicant on merits. In case, the applicant/accused misuses the concession of bail during trial, then trial Court would be competent to cancel the bail of the applicant/accused without making any reference to this Court. Since it is the case of dishonored cheque, therefore, trial Court is directed to decide the case of applicant/accused as early as possible, preferably, within a period of two (2) months after receipt of this order and no unnecessary adjournment shall be granted to either party, so also, compliance report be submitted to this Court through MIT-II.

          The bail application stands disposed of.

JUDGE

Faizan A. Rathore/PA*