THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1911 of 2020
Applicant : S. Kamran Asim son of S. Asim Ali, through Mr. Salman Ansari, Advocate
Respondent : The State through Mr. Muhammad Ahmed,
Assistant Attorney General for Pakistan along with Mr. Zulfiqar Ahmad Khan, A.D. FIA (AHTC), Karachi.
Complainant : None present, though served.
Date of hearing : 21.12.2020
Date of Order : 21.12.2020
ORDER
Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining his release on bail from trial Court in crime No.150/2020 registered under Sections 22(b) of Emigration Ordinance, 1979 read with Section 489-F PPC at P.S. FIA AHT Circle, Karachi. Now the applicant S. Kamran Asim is seeking his release on bail in the said crime through instant bail application.
2. Facts necessary for the disposal of this bail application are that FIA received a written complaint filed by complainant Tahir Zia son of Zia Ahmed Khan alleging that he and other persons were desirous of proceeding abroad for the purpose of employment/ settlement, thus came in contact with Syed Kamran Asim owner of M/s. Vconz situated at Suite No.M-6-M-8, Mezzanine Floor, B-43, Far’s Complex, Block-13/A, Main University Road, Gulshan-e-Iqbal, Karachi, who on the pretext of arranging work permit for Canada demanded an amount of Rs.15,00,000/-, on which they agreed and on 23.07.2013 complainant Tahir Zia, PW Muhammad Asif Rana and PW Muhammad Hasnain Raza paid Rs.500,000/- each respectively in advance to said agent, who after receiving the said amount assured them that he will arrange Canadian work permit for them within three months. Later on, Syed Kamran Asim closed his office and disappeared. The accused on demand by the complainant and the PWs for return of their amount, gave them different cheques, which were dishonoured when presented at concerned Bank for encashment. Hence this case.
3. Mr. Salman Ansari, learned counsel for applicant has argued that the applicant/ accused is innocent and has falsely been implicated in this case due to enmity, with malafide intention and ulterior motives; that there is inordinate delay of about more than seven years in lodging the FIR for which no plausible explanation has been given by the prosecution; that applicant neither demanded nor received any amount from the complainant and added that there is business transaction between the complainant and the accused, and by twisting the facts the complainant lodged a criminal case against the applicant, thus submitted that matter required further enquiry; that the investigation has been completed and the applicant is no more required for investigation and contended that the punishment of offence alleged to have been committed by the applicant does not fall within the prohibitory clause of Section 497 CrPC and prayed for grant of bail.
4. Mr. Muhammad Ahmed, learned Assistant Attorney General for Pakistan, on the other hand, has opposed the grant of bail to the applicant/ accused on the ground that the accused is nominated in FIR with specific role and further contended that present applicant had issued cheques to the complainant and PWs for return of their amount, which were dishonoured, when presented for encashment before the concerned Bank; hence under the circumstances of the case, he was of the view that applicant is not entitled for any leniency, therefore, his bail application may be dismissed.
5. I have heard the learned counsel for parties at some length and have perused the case papers so made available before me.
6. It is noted that case has been challaned and present applicant/ accused is no more required for investigation. The allegation against applicant is that on his demand complainant and PW Muhammad Asif Rana and Muhammad Hasnain paid Rs.5,00,000/- each respectively in advance to the applicant for arranging Canadian visa and send them to Canada but later on he closed his office and have not sent them abroad. However, he issued three cheques for returning their amount but when the said cheques, as stated in FIR, were presented to Standard Chartered Bank for encashment, the said cheques were dishonoured. It is surprising to note that the alleged amount was handed over to the applicant on 23.7.2013, but nothing on record that before whom the said amount was delivered to the applicant. However, it is alleged that on 24.9.2014, the applicant allegedly issued three cheques to the complainant party for returning their amount and when these cheques were presented before Standard Chartered Bank on 25.9.2014, same were dishonoured. I have noticed that alleged incident took place on 23.7.2013, but alleged cheques were issued to the complainant party on 24.9.2014 and the cheques were dishonoured on their presentation before the concerned Bank on 25.9.2014, but complainant party remained mum during this intervening period and they did not make any complaint to any higher authority for redressal of his grievances. Their long silence against the applicant is a question mark with regard to the genuineness of the claim of the applicant or otherwise.
7. It is also noted that the complainant party had made application to the FIA on 27.6.2018 after the delay of 05 years and the FIR was lodged on 09.9.2020. Again it is surprising to note that in the FIR no date and time of the occurrence has been mentioned except the year 2013. These aspects of the case lead to me whether the incident has taken place in a fashion as stated in FIR or otherwise. During the course of arguments, I have specifically asked the question from learned Assistant Attorney General for Pakistan to explain the delay in lodging of FIR, he has no satisfactory answer with him.
8. It is pertinent to mention here that present applicant/ accused has been booked in this case in two parallel statutes in field dealing with same subject and having same object, but the punishment provided for the same offences are different, therefore, in my tentative view, statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail. During the course of arguments, again I have specifically asked the question from learned Assistant Attorney General whether the punishment of the offence falls within the prohibitory clause of Section 497 CrPC, he answered in negative. Moreover, it is to be seen at the time of trial whether the alleged cheques were issued to the complainant party with dishonest intention or otherwise, as according to the counsel for the applicant, the ingredients of Section 489-F PPC are also missing in this case.
9. As observed above, the case has been challaned and the case is based upon alleged documentary evidence, which is in fact in possession of the prosecution, therefore, no question does arise for tampering the same at the hands of applicant. Applicant is said to be in custody since 25.9.2020 without any substantial progress in trial and if the trial Court shall proceed the trial with such a speed, the same would not conclude in near future. As observed above, case has been challaned and in this backdrop, no useful purpose would be served by keeping the applicant behind the bars. It is important to remember here that the bail is not to be withheld as a punishment. Nothing on record that present applicant is a previous convict or he has remained indulge in any other identical case in past, therefore, under these circumstances, the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Therefore, under the aforementioned facts and circumstances, this Court is left with no option but to release the applicant/ accused on bail. Accordingly, this bail application is accepted and applicant is admitted to bail provided he furnishing surety in the sum of Rs.2,00,000/- and PR bond in the like amount to the satisfaction of the trial Court.
10. Needless to mention here that any observation in this order is tentative in nature and shall not effect the merits of the case.
11. Before parting with the order, I would like to mention here that the case in hand is said to be of alleged cheating and fraud, therefore, I am sanguine that trial Court shall conclude the trial, preferably, within the period of 90 working days after receipt of this order and no unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II for perusal.
JUDGE
asim/pa