IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
Crl. Bail Appln. No. S- 657 of 2023.
Applicant: Rehan Khan Jalbani, through Mr. Nizamuddin Bhutto, Advocate.
Complainant: Abdul Rehman Magsi, through Mr. Rafique Ahmed K. Abro, Advocate.
Respondent: The State, Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 01.02.2024.
Date of order: 01.02.2024.
ORDER
Muhammad Saleem Jessar, J: Through this application, applicant Rehan Khan son of Shah Muhammad Jalbani has sought for his admission to post-arrest bail in Crime No. 205 of 2023, registered at Police Station A-Section Shahdadkot (District Kamber-Shahdadkot), for offences punishable under Section 489-F P.P.C. His similar request was firstly turned down by learned trial Court i.e. Civil Judge and Judicial Magistrate-II, Shahdadkot vide Order dated 11.10.2023, and secondly by learned Additional Sessions Judge-II, Shahdadkot, vide his Order dated 28.10.2023.
2. In nutshell, the case of prosecution is that, on 01.10.2023 complainant Abdul Rehman Magsi set the law into motion by lodging F.I.R with P.S A-Section Shahdadkot vide Crime No.205/2023, to the effect that he purchased 45-jirebs of agricultural land out of survey No.171, 191 and 192 from accused Rehan Khan Jalbani and had paid an amount of Rs.2825000/- to him, who promised to mutate “khata” in favor of complainant on 01.01.2023 and on such date the complainant along with his son Sohrab and nephew Muhammad Ali met the accused, who declared that he has no record/ khata, therefore, he asked the complainant to take back his money and issued a cheque bearing No.50843648, dated 22.4.2023, worth Rs.2825000/- in respect of his Account No.0059004099351845 of NBP Shahdadkot branch. As such, on 15.5.2023 the complainant presented such cheque to the concerned bank, where bank authorities told the complainant that the account is dormant, therefore, the complainant obtained such memo from the bank authorities. The complainant kept-on approaching the accused through “nekmards”, who kept him on hopes and promises and ultimately refused to pay back the money, as such the complainant approached concerned Police station and registered F.I.R.
3. Learned counsel for the applicant mainly contended that, applicant is innocent and has falsely been implicated in this case; that F.I.R is delayed for more than six hours; that entire case is concocted and managed by the complainant in collusion with area police, as no any sale took place between the parties, because the complainant is not the owner of survey numbers shown in F.I.R and that the cheque in question was given by applicant to complainant as “guarantee” in respect of the loan amount borrowed by applicant from the complainant and that admittedly the cheque pertain to dormant accounts of accused, which have been misused. Learned counsel further contended that the applicant has been implicated in this case by the complainant due to malice and ulterior motive and that the alleged offence does not fall within the prohibitory clause of section 497 Cr. P.C. He further added that the case has been challaned and physical custody of the applicant is no more required to police for the purpose of investigation. In support of his contentions learned counsel placed his reliance upon 2018 P.Cr.L.J -469; 2011 SCMR- 1708 and 2022 SCMR-594.
4. Learned Advocate appearing for the complainant vehemently opposed the grant of bail to applicant/ accused on the grounds that the applicant is nominated in promptly lodged F.I.R; that no mala fide has been proved to falsely implicate the applicant in the case; that the applicant has also failed to show that the cheque in question was not dishonestly issued for payment/ fulfillment of his obligation and that amount involved in the cheque is huge one and by usurping such a huge amount of the complainant the accused has caused financial murder of the complainant; and not the complainant but his entire family has been badly affected. Learned Advocate for complainant placed reliance upon 2021 P.Cr.L.J 886; 2022 MLD 1004 and PLD 2021 Supreme Court 903.
5. Learned D.P.G. also opposed the bail application. He also re-iterated mostly the same arguments as made by counsel for the Advocate for complainant.
6. I have heard the arguments advanced by learned counsel for the respective parties and perused the material available on record.
7. From tentative assessment of the record it appears that, there is nothing on record to show that the complainant has either filed any suit for recovery or any civil proceeding to enforce his title and to establish his bonafide. No material is available on the record to show that the transaction as claimed by the complainant with regard to alleged transaction had actually taken place. The record further reveals that the alleged cheque was bounced for the reason of dormant account. Hence, it is yet to be determined if the alleged cheque was issued by the applicant for fulfillment of any obligation or as a “guarantee”. All the evidence is with the prosecution, as such, there seems to be no probability of the applicant to tamper with prosecution evidence. Investigation is complete and physical custody of applicant is no more required to police, as such his further detention would not serve any purpose. More-so, though the offence is non-bailable, but it does not fall within the prohibitory clause of section 497 Cr.P.C. And, the case is being tried by the Magistrate; as such sentence for more than three years could not be visualized.
8. Keeping in mind the principles enunciated in case of Tariq Bashir and 5 others Vs. The State reported in PLD 1995 SC 34 and PLD 2017 S.C 733 (Muhammad Tanveer v. The State), I do not find any exceptional or extraordinary reason to deny bail to the applicant. Accordingly, the application in hands stands allowed. Consequently, the applicant is granted bail subject to furnishing a solvent surety in the sum of Rs.500,000/- (Five hundred thousand rupees) and P.R bond in the like amount to satisfaction of trial Court.
9. Needless to say that the observation made hereinabove is tentative in nature, which shall not prejudice the case of either party at trial.
Judge
Ansari