IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No.S-676 OF 2023

Date of hearing

Order with signature of Judge

For hearing of bail application.

O R D E R

27.10.2023

Mr. Muhammad Zohaib Azam, advocate for the applicant

Mr. Waheed Ali Samtio, advocate for complainant

Mr. Zulfiqar Ali Jatoi, APG for the State.

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ZULFIQAR ALI SANGI J., Through instant bail application the applicant/accused Abdul Razzaque son of Illahi Bux by caste Pahore, seeks pre arrest bail in Crime No. 143 of 2023, U/S 489-F PPC registered at police station Shaheed Murtaza Mirani. Prior to this, the applicant has filed such application for grant of pre-arrest bail, but the same was turned down by learned Additional Sessions Judge-III, Khairpur vide order dated 28.09.2023, hence he filed instant bail application.

2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

3. It is contended by the learned counsel that applicant/accused has falsely been implicated in this case by the complainant with mala fide intentions and ulterior motives due to previous dispute of civil nature for which a private faisla was held in between the parties; that there is delay of two months in registration of FIR to which no plausible explanation has been furnished by the complainant; that offence does not fall within the prohabitory clause of section 497 Cr.P.C; that case has been challaned and applicant/accused is not more required for further investigation; that after grant of interim pre-arrest, the applicant/accused joined the investigation and has not misused the concession of interim pre-arrest bail, therefore, he pray for confirmation of interim pre-arrest bail. In support of his contention, learned counsel relied on the case of Bashir Ahmed vs. The State and another (2023 SCMR 748)

4. On the other hand learned APG for the State assisted by learned counsel for the complainant submitted that applicant/accused is nominated in FIR with specific role that he issued cheque with mala fide intention and on its presentation same was dishonoured. It is further submitted that issuance of cheque has not been denied by the applicant and that there is no civil dispute in between the parties, therefore, opposed confirmation of pre-arrest bail to the applicant/accused. In support of contention, the learned counsel for complainant relied upon the cases of Syed Husnain Hyder vs. The State and another (2021 SCMR 1466) and Muhammad Yaqoob vs. The State (2022 SCMR 1065)

5. I have heard learned counsel for applicant/accused, learned APG for the State as well as learned counsel for the complainant and have gone through the material available on record.

6. Admittedly, there is delay of 2 months in lodging of FIR and same has not been explained by the complainant. The offence for which applicant/accused is involved is punishable up to 3 years and same does not been fall within ambit of prohabitory clause of Section 497 Cr.PC and grant of bail in these ceases is right while refusal is an exception as been held the by Supreme Court of Pakistan in the cases of Tarique Bashir vs. State (PLD 1995 SC 34), Zafar Iqbal vs. Muhammad Anwar and others (2009 SCMR 1488) and Muhammad Tanveer vs. The State (PLD 2017 SC 733) and Shaik Abdul Rehman v. The State etc (2021 SCMR 822)

7. Further Supreme Court in case of Muhammad Imran vs. The state and others (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 of his previous criminal record of the desperate manner in which he has prime facie acted in the commission of offence alleged. The 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 material available on record. In the case in hand the prosecution has failed to establish any of the above ground meriting denial of the application of the applicant. It is also settled by the 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 record.

8. In view of above discussion, applicant/accused has made out a good case for confirmation of bail in the light of sub section (2) of Section 497 CrPC, hence the instant bail application stands allowed and result thereof, interim pre arrest bail already granted to the applicant/accused is confirmed on same terms and condition. However, learned trial Court is at liberty to take action against the applicant/accused, if he misuses the concession of bail.

9. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the applicant/accused on merits.

J U D G E

M.Ali steno