ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S-229 of 2020

Applicant : Kashif Ayaz Ansari

Through Mr. Manzoor Ali Chohan, Advocate

Complainant : Muhammad Asif

Through Mr. Shabbir Ali Bozdar, Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar,

Date of hearing : 13.07.2020

Date of Order : 13.07.2020

*****

O R D E R

Adnan-ul-Karim Memon, J: Post arrest bail is sought by the Applicant in respect of offences under section 489-F, 420, 506/2 of the Pakistan Penal Code ("P.P.C.") which was registered through FIR No.114/2019 at Police Station Shaheed Inspector Roa Shafiullah, District Sukkur. Earlier, he approached to the court of Civil Judge & Judicial Magistrate/Consumer Protection Court, Sukkur, by filing Cr. B.A No.02/2019, praying therein for his admission on bail, which was dismissed vide order dated 07.01.2020; thereafter, again he filed a Cr. Bail Application No.68/2019 for the similar relief before Vth Additional Session Judge, Sukkur, but the same also met with same fate.

2. Complainant has put allegations against the applicant on the premise that he issued two cheques bearing Nos. A-42678821 and 24 10427301 amounting to Rs. 9,83,000/- and 1153000/-, respectively, which were on presentation dishonored, being bogus. Such F.I.R No.114/2019 was registered at Police Station Shaheed Inspector Roa Shafiullah, District Sukkur against the applicant and others. Investigating Officer recorded statements of prosecution witnesses, arrested Applicants on 13.11.2019, secured cheque and relevant material and finally submitted Charge Sheet on 15.12.2019, before learned Judicial Magistrate, Sukkur, against Applicant and others under Section 420, 406, 506-B P.P.C. The Applicant moved Bail Application before the trial which was declined. The applicant being aggrieved by and dissatisfied with the refusal of bail preferred bail application No. 68 0f 2020 before learned Additional Session Judge, Sukkur, which was too dismissed on 16.1.2020, Hence, the Applicant has preferred instant Bail Application before this Court.

3. Mr. Manzoor Ali Chohan, learned counsel for the applicant states that the FIR was lodged after an inordinate delay of five days and no plausible explanation for the said delay has been given in the FIR. He states that under the circumstances it is a clear case of malicious and mala fide FIR and the applicant is entitled to post-arrest bail; that Complainant with malafide intention has fabricated a story of his own to attract section 420, 506-B and 489-F of P.P.C respectively; that the alleged offence under Section 489-F does not fall with the prohibition contained in Section 497(1) Cr.P.C, therefore, the case against the Applicant requires further inquiry; that the whole case of the prosecution depends upon the documentary evidence which is available with the prosecution, therefore, there is no question of tampering with the same; that the basic ingredients of section 489-F are missing, therefore, Applicant cannot be saddled with criminal liability; that the matter between the parties is of civil nature but, Complainant has converted it into a criminal case which requires further inquiry; that the alleged cheques as mentioned in the FIR were never issued by the Applicant; that the complainant allegedly delivered the gold of Rs.19,70,000/- to the applicant and others without receiving payment which creates serious doubt upon the prosecution story; that the complainant has not given the description of his account maintained by him in the Bank; that no cheque was ever deposited in his account; that during the investigation co-accused Hamad and Nidha were let-off by the police on the basis of a further statement of complainant as both were nominated as accused in the F.I.R; that the complainant did not disclose the Bank name, branch and account number in the FIR, in which the accused party had allegedly deposited the cheques of the alleged transaction; that the complainant in his statement on oath narrated another story which creates doubt in his case; that 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. He lastly prayed for grant of post-arrest bail to the applicant in the aforesaid FI.R.

4. Conversely, Mr. Shabbir Ali Bozdar, learned Counsel for the Complainant, contended that the alleged cheques were issued by the Applicant, which were subsequently bounced from the Bank; that the alleged cheques were issued in lieu of gold purchased by him from the complainant; Furthermore, the applicant did not deny the issuance of cheques as he put his signature so also fill up the amount; that it is well-settled law denial itself is no ground for bail when other circumstances supporting the case. Learned Counsel further contended that the applicant committed mischief by giving cheques, which were subsequently dishonored.

5. Learned Deputy Prosecutor General, Sindh has opposed the grant of bail to the Applicant while adopting the arguments of learned Counsel for the Complainant.

6. I have heard learned Counsel for the Applicant, learned Counsel for the Complainant and learned Deputy Prosecutor General as well and have minutely perused the material available on record.

7. I am conscious of the fact that while deciding a bail application this court has to make tentative assessment of the record which in this case is reflecting the following aspects:

i) Prima facie, complainant is not the account holder;

ii) No receipts of alleged selling of gold to the applicant has

been produced;

iii) Complainant narrated the story about three accused, whereas, in his statement recorded on 19.02.2020 by the learned trial Court, prima facie, narrates a different story;

iv) Other co-accused have been let-off by the police upon further statement of the complainant;

v) Alleged offence took place on 07.11.2019 and reported on 12.11.2019, after a delay of five days without any explanation;

vi) Prima facie, complainant did not receive the alleged cheque from the applicant and presented in bank for encashment;

vii) Offence under Section 489-F is punishable for three years;

viii) Section 420 PPC is yet to be determined by the learned trial

Court;

8. I have noted that Applicant is mainly charged with offence punishable under section 489-F P.P.C. maximum sentence for which is three years imprisonment thus, the same does not fall within prohibitory clause of section 497 Cr.P.C. The learned counsel for the complainant has not been able to satisfactorily controvert the points raised by the learned counsel for the Applicant. Prima-facie the case is one of further inquiry. Secondly, the factual aspects of the matter have already been narrated by the complainant in his statement recorded before the learned trial Court which speaks volume. The applicant is behind bars since his arrest on 13.11.2019. On the aforesaid proposition, I am fortified by the decision rendered by the honorable Supreme Court in the case of Muhammad Sarfraz vs. The State (2014 SCMR 1032) wherein bail was granted for the offence under section 489-F P.P.C.

9. In view of the tentative assessment of the record discussed supra the case of Applicant requires further inquiry as provided under section 497 (2) Cr.P.C. The Applicant has made out a case of post-arrest bail at this stage. Accordingly, the Applicant is admitted to post-arrest bail in the aforesaid F.I.R subject to furnish solvent surety in the sum of Rs.500, 000/-(Rupees five lac only) and PR bond in the like amount to the satisfaction of the Trial Court.

10. The above findings are tentative in nature which shall not prejudice the case of either party during the course of trial.

11. These are the reasons for my short order announced today i.e. 13.07.2020, whereby, I have admitted the Applicant on post-arrest bail in the aforesaid crime.

JUDGE

Faisal Mumtaz/PS