Order
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Bail App. No. S – 276of 2019
Date of hearing : 29.07.2019.
Mr. Muhammad Ali
Napar, Advocate for the applicant / accused.
Mr. Sarfraz A.
Akhund, Advocate for the complainant.
Syed Sardar Ali Shah,
Deputy Prosecutor General for the State.
O
R D E R
ABDUL MAALIK GADDI, J.–Applicant / accused Muneer Khan is present
on interim pre-arrest bail granted to him by this Court vide order dated
13.05.2019. Complainant Muhammad Shafique is also in attendance. Today, this
bail application is fixed for confirmation or otherwise.
2. Facts
necessary for the disposal of this bail application are that on 11.03.2017,
applicant / accused has allegedly issued a cheque bearing No. 1638642646 dated 15.10.2018
amounting to Rs.80,00,000/- (Eighty lac) of Muslim Commercial Bank, Clock Tower
Branch, Sukkur in favour of the complainant and when it was presented for
encashment before the concerned bank on 12.11.2018, it was dishonored.
3. Learned
counsel for the applicant / accused contended that the applicant is innocent
and has falsely been implicated in this case by the complainant with malafide
intention; that there is a delay of two (02) years in lodging of FIR which has
not been explained by the complainant; that the alleged offence does not fall within
the prohibitory clause of Section 497 Cr.P.C; that a First Class Suit bearing
No. 294 of 2018 in respect of same controversy is also pending before the
learned Ist Senior Civil Judge, Sukkur and it is yet to be determined
at the time of trial whether the applicant has malafidely / dishonestly issued
a cheque to the complainant or otherwise. Till then according to him, the case
of the applicant / accused is required further probe.
4. Learned
DPG, in view of the above assertions, has not opposed this bail application.
5. Learned
counsel for the complainant has opposed the confirmation of this bail on the
ground that the applicant / accused is nominated in the FIR with specific role
of issuing cheque and that the witnesses have supported the version of the
complainant in their statements recorded under Section 161 Cr.P.C. He has further
submitted that it has been proved from the available document that the
applicant / accused with malafide intention and just to cheat the complainant,
issued a cheque which was subsequently dishonored.
6. I
have heard the learned counsel for the parties at a considerable length and
have gone through the case papers so made available before me.
7. It
appears from the record that the alleged incident took place on 11.03.2017,
whereas, FIR was lodged on 23.04.2019 by complainant Muhammad Shafique after
the delay of two (02) years for which no satisfactory explanation has been
furnished. It also appears from the record that the case has been challaned and
the applicant / accused is no more required for investigation. The whole case
of the complainant is based upon the documentary evidence, which in fact, is in
possession of the prosecution, therefore, there is absolutely no question
arisen for tempering in it at the hands of the applicant / accused.
8. Admittedly,
parties are already in litigation with regard to same controversy in First
Class Suit No. 294 of 2018 pending before the learned Ist Senior
Civil Judge, Sukkur. Apart from this, the punishment, for which the present
applicant / accused has been booked in this case, does not fall within the
prohibitory clause of Section 497 Cr.P.C, therefore, the Hon'ble Supreme Court
in number of cases has held that if the case does not fall within the
prohibitory clause of Section 497 Cr.P.C, grant of bail was/is a rule and
refusal is an exception. No exception circumstances appear in this case to
withhold bail of the applicant / accused.
9. Under
these circumstances, I have come to the conclusion that the applicant / accused
has made out the case for confirmation of his bail. I accordingly in view
what I have observed above, confirm the interim order already extended in
favour of the applicant / accused on same terms and conditions with direction
to the applicant / accused to appear before the trial Court to face trial.
Needless to mention here that any observation in this order is tentative in
nature and shall not affect the merit of the case.
10. Before
parting with the order, I would like to make it clear that in case, during the
trial, if the applicant / accused misuses the bail then trial Court would be
competent to cancel the bail of the applicant / accused. Since it is a case of
cheating, therefore, the trial Court is also directed to decide the case within
a period of two (02) months under intimation to this Court. No unnecessary
adjournment shall be granted to either side.
11. Criminal
Bail Application stands disposed
of in the above terms.
J U D G
E