IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-723 of 2019
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE |
1. For orders on
O/objection at flag-A.
2. For the hearing
of bail application.
Date
of hearing 27.01.2020.
Mr. Ghulam
Shabir Dayo Advocate for the applicant.
Mr. Yasir
Arfat Mahar Advocate for complainant.
Mr. Abdul
Rehman Kolachi DPG.
***************
ZULFIQAR ALI SANGI, J;- Through instant bail application, the applicant/accused
Saeed Abbas S/o Liaqat Hussain seeks post-arrest bail in Crime No.159/2019
registered at Police Station, A Section Sukkur for offence punishable under
Sections 489-F, 506(2), 420 PPC.
2. Brief
facts of the prosecution case are that complainant Waseem Ahmed lodged FIR on
22.10.2019 at 1330 hours stating therein that applicant Saeed Abbas has
purchased 750 sacks of wheat amounting to Rs.2400000/- from him and undertook
to pay the amount within a week and went away/-. On 23.06.2019 applicant Saeed
Abbas came at Lab-e-Mehran Hotel Sukkur where he called complainant, it was
about 1700 hours. He met him along with two witnesses Waqar Ali S/o Fakir Mohammad Pathan and Munir
Ahmed S/o Shafi Mohammad Qureshi R/o Barrage Colony Sukkur and handed over him
one Cheque No.11004269 amounting to Rs.2400000/- for 24.07.2019 of Bank
Al-Habib Branch Nawabshah. It is alleged that the complainant deposited said
cheque in his account in HBL Gharibabad
Branch but said cheque was dishonored on 16.10.2019, such a memo was issued. On
05.10.2019 the conversation was made with accused who issued threats of dire consequences.
Hence, he lodged FIR.
3. Learned Counsel for applicant contends
that the applicant has falsely been involved in this case by the complainant
with malafide intention and ulterior motives. He submits that instant FIR was
registered with malafide intention as the original dispute of applicant is with
one Abdul Ghafoor Shah to whom the applicant gave blank cheques for security
and now he is using his friends by registering several FIRs at different
places. He further contends that another FIR bearing Crime No.338/2019 u/s 504,
506-B, 489-F PPC Police Station, Balouch Colony, Karachi was registered and the
applicant has been granted bail by the learned Add: Session Judge IV, South,
Karachi and in other similar nature cases he has been granted bail by learned
Sessions Judges. The main contention of learned Counsel for the applicant is
that the punishment provided for the offence as alleged is only up to three
years which does not fall within the prohibitory clause of Section 497 Cr.P.C.
In the circumstances, he states that the case of the applicant requires further
inquiry and the applicant is entitled to grant of bail. He relied upon the case
of Mian Mohammad Akram v. The State and others (2014 SCMR 1369).
4. Learned Deputy prosecutor General
appearing for the State assisted by learned Counsel for complainant opposed the
grant of bail on the ground that applicant has issued a Cheque amounting to
Rs.2400000/- and that cheque on presentation was dishonored such memo has been
issued by the bank authorities; that case is based on documentary evidence and
no malafide is on the part of complainant has been pointed out by the
applicant. He further contended that this is a financial murder of complainant
wherein a huge amount of the complainant has been embezzled by way of fraud by
the applicant. By stating so they requested for dismissal of this bail
application.
5. Heard arguments of learned
Counsel for the parties and perused the record with their able assistance.
6. Learned Counsel for applicant placed on
record one agreement available on page-63 with Abdul Ghafoor Shah S/o Allah Bux
Shah in which some detail of Cheques is mentioned including the present cheque.
The said Abdul Gafoor shah has also lodged FIR against the applicant. Admittedly,
in other cases, the applicant has been granted bail by the Trial Courts.
7. It is surprising that during the entire
investigation, I.O had failed to collect any evidence which shows that the
complainant or the applicant were dealing with the business of sale and
purchase of wheat and learned Counsel for complainant so also learned DPG have
also failed to point out such evidence on record. In absence of any business
transaction between the parties, it cannot be said that the cheque was given
dishonestly or it was given to fulfillment of any obligation or re-payment of
any loan to attract the provision of section 489-F PPC. The Section 489-F reads
as under;
Dishonestly issuing a cheque- Whoever dishonestly issues a
cheque towards repayment of a loan for fulfillment of an obligation which is
dishonoured on presentation, shall be punishable with imprisonment which may
extend to three years, or with fine, or with both unless he can establish, for
which the burden of proof shall rest on him, that he had made arrangements with
his bank to ensure that the cheque would be honoured and that the bank was at
fault in not honouring the cheque.
8. From the contents of FIR and
material placed on record by learned Counsel for the applicant so also material
collected during investigation it is clear that several FIRs were registered
against the applicant on the basis of those cheques which are mentioned in the
agreement. All these circumstances make out a case of further inquiry and it is
for the trial court to decide the entire case after recording the evidence. In
the case of Mian Mohammad Akram v. The State and others (Supra) the Honourable Supreme Court has held as under;
It
has straightaway been observed by us that according to the FIR the amount in
issue had been given by the complainant to the petitioner by way of entrustment
and, thus, the cheque statedly issued by the petitioner in favour of the
complainant was prima facie not issued towards repayment of any loan or fulfillment
of an obligation to attract the provisions of Section 489-F PPC. We have
repeatedly asked the complainant to confirm as to whether had given the amount
is issued to the petitioner by way of entrustment or as a loan and every time
the complainant has insisted that he had handed over the relevant amount to the
petitioner only by way of a trust. In these peculiar circumstances of this case,
the question as to whether the provisions of section 489-F PPC stand attracted
to the allegations leveled by the complainant against the petitioner or not is
a question that requires further probe at this stage. The investigation officer
present before the Court has categorically stated that during the investigation
no evidence has become available on the record regarding any obligation on the
part of the petitioner to repay any amount to the complainant. The
investigation officer has confirmed the fact that the petitioner has already
joined the investigation. In these circumstances insistence by the local police
upon the arrest of the petitioner has prima facie appeared to us to be smacking
of bad faith.
9. It is a well-settled principle
of law that at the stage of bail deeper appreciation of evidence is not
permissible but the material is to be assessed tentatively. From the tentative
assessment of the material available on record, I am of the considered view
that the applicant has been able to make out a case for grant of bail. Accordingly, the instant bail application is allowed. The
applicant/accused Saeed Abbas is granted post-arrest bail
subject to his furnishing solvent surety in the sum of Rs.500,000/-
(Rupees Five Lacs) and PR bond in the
like amount to the satisfaction of the learned trial Court.
Bail application stands disposed of.
J U D G E