IN THE HIGH COURT OF SINDH
AT LARKANA
Criminal Bail Application 421 of 2021
Faiq Ali
vs.
The State
For the Applicant : Mr. Ghayoor Abbas M. Shahani, Advocate along with Applicant
For the Prosecution / State : Mr. Aitbar Ali Bullo, DPG
The Complainant : Ajeet Kumar
Date of hearing : 31.01.2022
Date of announcement : 31.01.2022
ORDER
Agha Faisal, J. The applicant seeks confirmation of pre-arrest bail, in respect of F.I.R. No. 38 of 2021, registered on 15.08.2021 before P.S. B-Section Kandhkot, pertaining to offence/s under Section/s 489-F, 506/2 P.P.C.
2. Learned counsel submits that the applicant surrendered before the Court of the Ist Additional Sessions Judge, Kandhkot, however, vide order dated 10.09.2021, in Cr. Bail Application No.122 of 2021, the applicant’s application for pre-arrest bail was dismissed, hence, the present proceedings. Vide interim order dated 14.09.2021, the applicant was admitted to interim pre-arrest bail and he seeks confirmation thereof.
3. After considering the submissions of the learned counsel and sifting[1] through the material placed before the court, reproduction whereof is eschewed herein[2], it is observed as follows:
a. The allegation against the applicant is dishonest issuance of a cheque and also extending threats. Per applicant's counsel, there is an underlying business relationship between the applicant and the complainant for which the complainant had obtained blank cheques as security and that they were lodged for encashment without reason and without any intimation to the applicant. It is further submitted that out of the three said cheques lodged only one was returned on account of having insufficient funds, however, the question of the dishonest issuance thereof does not arise.
b. Learned counsel pleaded entitlement to the concession of pre-arrest bail on the premise that the alleged offence, if any, event does not come within the prohibitory clause; there is prima facie no question of any dishonest issuance of any negotiable instrument as the relationship between the parties is apparent inter se; that the cheque was obtained in blank form insofar as the date and the amount was concerned and since it was lodged without intimation or justification no dishonesty could be attributed to the applicant in such regard.
c. Learned D.P.G has opposed the concession of bail and submits that the accused has clearly been nominated in the F.I.R and the cheque is returned, therefore, in the present facts and circumstances he has not been able to make out any case for concession of bail.
d. Mr. Abdul Ghani Bijarani advocate appears on behalf of Mr. Aftab Ahmed Channa, advocate for the complainant and seeks time, which contention is vehemently opposed by the applicant's counsel and in such regard attention was drawn from the previous orders wherein time had been sought similarly.
e. Learned counsel has articulated a prima facie case for consideration of judicial refuge[3], envisaged to protect the innocent / vulnerable from the rigors of abuse of process of law and harassment[4]; so as to protect human dignity and honor[5] from the humiliation of incarceration, arguably intended for designs extraneous and mala fide.
f. It has been reasoned that the basic foundation of prosecution remains to be laid, hence, demonstrably qualifying the present case within the remit of Section 497(2) of the Code of Criminal Procedure 1898. Therefore, denial of anticipatory bail in the present circumstances, in an arguably fit case for consideration of post arrest bail[6], on a technicality would be unconscionable and unmerited[7].
4. In view of the foregoing, the interim pre-arrest bail granted to the applicant, vide order dated 14.09.2021, is hereby confirmed, upon the same terms as earlier prescribed and this bail application is disposed of accordingly.
5. It is considered pertinent to record that the observations herein are of a tentative nature and shall not influence and / or prejudice the case of either party at trial.
JUDGE
[1] Shoaib Mahmood Butt vs. Iftikhar Ul Haq & Others reported as 1996 SCMR 1845.
[2] Chairman NAB vs. Mian Muhammad Nawaz Sharif & Others reported as PLD 2019 Supreme Court 445; Muhammad Shakeel vs. The State & Others reported as PLD 2014 Supreme Court 458.
[3] Per Qazi Muhammad Amin J. in Ghulam Farooq Channa vs. The Special Judge ACE (Central I) Karachi & Another (Criminal Petition 169 of 2020) approving Hidayat Ullah Khan vs. The Crown reported as PLD 1949 Lahore 21 (Per Cornelius J.).
[4] Ajmal Khan vs. Liaqat Hayat & Another reported as PLD 1998 Supreme Court 97.
[5] Murad Khan vs. Fazle Subhan & Another reported as PLD 1983 Supreme Court 82.
[6] Muhammad Ramzan vs. Zafar Ullah & Another reported as 1986 SCMR 1380.
[7] Khalil Ahmed Soomro & Others vs. The State reported as PLD 2017 Supreme Court 730; Hassan Jameel Ansari & Another vs. National Accountability Bureau & Another reported as 2012 YLR 2809 (Division Bench Judgment of this Court).