IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Criminal Bail Appln. No. S-45 of 2023

 

 

Applicant:

 

Muhammad Ismail Kakepoto

 

 

Through Mr. Habibullah G. Ghouri, advocate

 

Complainant:

 

Saeed Ahmed Sangi

 

 

(In person)

 

 

 

The State

 

Through Mr. Aitbar Ali Bullo, D.P.G for the State

 

 

 

Date of hearing:

 

23-02-2023

Date of order:

 

23-02-2023

 

 

O R D E R

 

 

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, applicant/accused Muhammad Ismail Kakepoto seeks confirmation of interim pre-arrest-bail in Crime No.115/2022, registered at Police Station Civil Lines, Larkana for the offence U/S 489-F P.P.C, after rejection of his bail plea by the learned I-Additional Sessions Judge, Larkana vide order dated 09.01.2023.

2.                           The facts of the incident are mentioned in the memo of bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.

3.                           It is contended by the learned counsel for the applicant that the applicant/accused is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives. He further submits that neither the applicant has issued the alleged cheque to the complainant nor his signature is available on the said cheque, in fact the complainant has managed the said cheque in previous date; that the F.I.R does not show the time and place wherefrom the applicant/accused given the said cheque; that the accused is not previously convicted. He further submits that the offence does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C; that the case requires for further inquiry. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicant/accused.

4.                           Learned D.P.G. and complainant have strongly opposed the confirmation of interim pre-arrest bail on the ground that the present applicant/accused has been nominated in the FIR with specific role of committing fraud, that the offence for which applicant allegedly involved is non-bailable, therefore, he is not entitled to the confirmation of pre-arrest bail.

5.                           Heard learned counsel for the applicant, learned Deputy Prosecutor General, complainant and perused the material available on the record with their able assistance.

6.                           It reflects from the F.I.R that the cheque was given in repayment of amount given by the complainant for obtaining the job as bribe money and it was not a loan and the amount was also not in lieu of fulfilment of any legal obligation, therefore, in the present case, the ingredients of Section 489-F P.P.C are not attracted. However, the offence with which the applicant is allegedly involved carries punishment upto three years and the same does not fall within the prohibitory clause of section 497 Cr.P.C. Grant of bail in such cases is rule while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc. (2021 SCMR 822). Further, the Honourable Supreme Court in case of Muhammad Imran V. The State (PLD 2021 SC-903) has formulated the grounds for the case to fall within the exception meriting denial of bail as (a). the likelihood of the petitioner’s abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Further, Honourable Supreme Court held in the said order that the prosecution has to show if the case of the petitioner falls within any of these exception on the basis of the material available on the record. In the case in hand, the prosecution has failed to establish any of the above ground meriting denial of the application of the applicants. It is also settled by the Honourable Apex Court that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record.

7.                           From tentative assessment of material available on record, it appears that the applicant/accused has made out a case for confirmation of interim pre-arrest bail in view of subsection (2) of Section 497 Cr.P.C. Accordingly, instant criminal bail application is allowed. Interim pre-arrest bail already granted to the applicant/accused vide order dated 02.02.2023 is hereby confirmed on same terms and conditions.

8.                           Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the ca se of either party at trial.

 

J U D G E

 

Abdul Salam/P.A