ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 340, 342 and
344 of 2023.
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Date of hearing |
Order with signature of Judge |
11.09.2023.
Mr. Abdul Qadir Abro, Advocate for applicants in Crl. Bail Appln. No. S- 340 of 2023.
Mr. Abid Hussain Abro, Advocate for applicant in Crl. Bail Appln. No. S- 342 of 2023.
Mr. Parvaiz Khan Jatoi, Advocate for applicant in Crl. Bail Appln. No. S- 344 of 2023.
Mr. Abdullah Kehar, Advocate for complainant.
Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Shamsuddin Abbasi, J- This single order would dispose of captioned three bail applications, as the same are arisen out of one and same crime. The Crl. Bail Appln. No. S- 340/2023 has been filed on behalf of applicants Abdul Wahab and Muhammad Ali; Crl. Bail Appln. No. S- 342 of 2023 has been filed on behalf of applicant Muhammad Sulleman alias Salman Bhutto, while Crl. Bail Appln. No. S- 344/2023 has been filed on behalf of applicant Salman Shaikh; seeking pre arrest bail, in case arisen out of F.I.R No. 80/2023 registered with P.S Lakhi Gate (Shikarpur), for offences punishable under Section 448, 506 (2), 420, 406 and 489-F P.P.C.
Earlier, bail plea of the applicants was declined by learned Court below vide common Order dated 21.06.2023 passed in Crl. Bail Appln. Nos. 607, 608 and 609 of 2023.
The facts of case of prosecution case as depicted from para 2 of the impugned order, read as under:
“That on 09.6.2023 at about 2300 hours complainant Rafique Anwar Jamali lodged F.I.R at P.S Lakhi-Gate, alleging therein that he has his own residential house C.S No.55/02, total area 1130 feet; 125-5 square yards, situated at Miskeen Shah Muhalla, Dasgeer Colony, Taluka and District Shikarpur, such survey record stands in his brother’s name Waheed Anwar Jamali. It is alleged that after sometime back one Muhammad Shaoib Ahmed son of Mukhtiar Ahmed by caste Bhutto resident of Haji Latif Shah road Shikarpur contracted to sale the said house in presence of Waheed Ahmed and Azharuddin consideration of amount Rs.50,00,000/-, out of which Muhammad Shoaib paid Rs.500,000/- as advance money while a cheque No. D- 99299356 worth Rs.4500,000/- was given by accused Muhammad Shoaib to complainant. It is further alleged that on 24.2.2023 complainant alongwith his witnesses were present in their house, where accused Muhammad Shoaib, Salman, Abdul Wahab, Muhammad Ali alias Nomi and Salman Shiakh came and took away Waheed Anwar at evening time Waheed Ahmed returned who disclosed to complainant that above named accused persons on the show of T.T pistols while issuing threats of murder forcibly took him before Sub-Registrar office, Shikarpur with the collusion of staff, they got registered sale deed and took signatures and thumb impressions from him for changing the city survey record of above residential house. It is further alleged that on the same day at about 05.00 p.m. above named accused came to house of complainant and on the force of weapons they dispossessed him from above residential house after issuing threats. It is further alleged that on 11.4.2023 complainant approached to Askari Bank Shikarpur for encashment of cheque, but due to insufficient balance same was not cashed and returned to complainant along with memo, hence instant F.I.R was lodged by complainant to the above effect.”
Learned counsel for the applicants contended that the applicants are innocent and they have been falsely implicated in this case by complainant with malafide intention and ulterior motives; that the F.I.R is delayed for 3 months and 13 days; that the present applicants are not alleged to have issued cheque in question, but it was allegedly issued by co-accused Shoaib. Per learned counsel the applicants have no nexus with the alleged incident but since applicants Abdul Wahab and Muhammad Ali are close relative of principal accused Shoaib, they have been involved in this case by complainant with malafide intention and ulterior motives, and that the alleged offences do not fall within prohibitory clause of Section 497 Cr.P.C.
Conversely, learned D.P.G appearing for the State assisted by learned Advocate for complainant vehemently opposed grant of bail on the grounds that the applicants are nominated in F.I.R with specific role; that they took away brother of the complainant and forcibly got his signature and thumb impression on sale agreement in collusion with staff of sub-registrar thereby deprived of the complainant of his valuable property by cheating and fraud and that the present applicants are business partners of principal accused Shoaib. The counsel for complainant further added that the applicants are habitual offenders of these type of offences, as they have also been booked in similar type of cases by various persons.
I have heard the arguments advanced by learned counsel for parties and perused the record available on the record.
Admittedly, there is delay of more than three months in registration of the F.I.R without furnishing plausible explanation. The cheque in question is alleged to have been issued by the co-accused Shoaib and not by the present applicants. The allegation against present applicants is that they came to the house of complainant along with principal accused Shoaib and took complainant’s brother Waheed Anwar with them and in evening time said Waheed Ahmed returned home and informed the complainant that accused persons on the show of T.T pistols while issuing threats of murder forcibly took him before Sub-Registrar office, Shikarpur and with the collusion of staff, they got registered sale deed and took signatures and thumb impressions from him for changing the record in respect of the house in question. This allegation prima-facie does not appeal to a prudent mind and such culpability of the applicants certainly calls for further probe and it would be decided by the learned trial Court after the recording of evidence during the trial and at this juncture this factum requires further inquiry into the guilt of the applicants. There is also nothing on record to show that, the complainant has filed any suit for cancellation of aforesaid registered sale deed and or recovery of his amount to enforce his title and to establish his bonafide. Furthermore, the offences with which the applicants stand charged fall within non-prohibitory clause of Section 497 Cr.P.C. Besides above, the main ingredient of malafide is also alleged against the complainant to falsely implicate the applicants in the instant case, as according to learned counsel for applicants since applicants Abdul Wahab is father-in-law and Muhammad Ali is brohter-in-law of principal accused Shoaib, whereas Sulleman Shaikh is stamp vendor and Sulleman Bhutto had purchased property involved in this case; therefore, they have been dragged in this case by complainant with malafide intention and ulterior motives. This relationship between applicants and co-accused Shoaib is not denied by counsel for the complainant.
All these circumstances prima-facie establish that the case against applicants fall within the purview of subsection (2) of Section 497 Cr.P.C., entitling them to grant of bail on merits besides malafides on part of complainant. It is well settled law that, benefit of doubt, if established, can be extended even at bail stage and that merits of the case can also be touched upon while granting pre arrest bail. Reference in this regard can had from case of Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733) and Muhammad Ijaz v. The State and others (2022 SCMR 1271).
As a consequence to the above observations, I have found the case against present applicants as a case for further probe. Consequently, the interim pre-arrest bail granted to the applicants vide Order dated 23.06.2023 is hereby confirmed on the same terms and conditions.
Needless to say, that the above observations are tentative in nature, and shall not prejudice the case of either party at trial.
Judge
Ansari