ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

1^st  Crl. Bail Appln. No.S-463  of  2023

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

20.11.2023.

1. For orders on office objections.

2. For hearing of Bail Application.

Mr. Soofan Sah, Advocate along with applicant (on bail).

Mr. Khalil Ahmed Metlo, Asst. P.G.

Mr. Suhendar Kumar Gemnani, Advocate along with complainant.

O R D E R.

                   By means of this application, applicant Suhno Khan Solangi seeks pre-arrest bail in Crime No.208/2023, registered with Police Station Kamber City, offence under Section 489-F, PPC.

2.                Per prosecution case, an amount of Rs.50,00,000/- of complainant Riaz Hussain Shabrani were outstanding against applicant/ accused Suhno Khan Solangi, for which the applicant accused delivered a cheque of the said amount drawn on Bank Al-Habib Kamber Branch, which on presentation before the concerned bank was dishonoured with requisite memo on the ground of no amount in the account. Hence, such FIR was lodged by the complainant against the applicant on 13.06.2023.

3.                Learned Counsel for the applicant/accused submits that the applicant has filed F.C. Suit No. ____/2023 before the Court of Civil Judge & JM-II, Kamber re-Suhno Khan Solangi v. Riaz Hussain Shabrani & others, in which the complainant/defendant has been debarred from filing his defence. In support of his contentions, he submits certified copy of case diaries of the trial court dated 02.10.2023, 05.10.2023 qand 14.10.2023. Surprisingly enough, as stated, this suit was instituted prior to lodgment of FIR, even then the trial Court has not assigned number to the suit, which is highly alarming and shows apathy on the part of the Presiding Officer, which is hereby noted with high concern and dismay.  Learned Counsel for the applicant further submits that though the amount involved in this case is Rs.50,00,000/-, yet the applicant has filed civil suit for settlement of accounts, hence accusation against the applicant is yet to be established by the prosecution after recording evidence; that the offence does not fall within prohibitory clause of Section 497, Cr.PC and the case against the applicant calls further enquiry.

4.                Learned APG appearing for the State after confronting the above situation has recorded his no objection.

5.                Learned Counsel for the complainant opposes the bail application and contends that the applicant/accused has usurped huge amount of the complainant, therefore, he is not entitled to concession of bail.

6.                I have heard the arguments of either side and have gone through material made available before me.

7.                It is an admitted position on record that the applicant/accused has filed suit for settlement of accounts against the complainant, which is pending adjudication before the concerned Court of competent jurisdiction. Although there is no legal bar which may forbid a party from initiation of both remedies i.e. civil and criminal, yet the suit filed by the applicant is prior to lodgment of the FIR; hence malafide on the part of prosecution stands established, which is main ingredient for grant of pre-arrest bail. The case depends upon the documentary evidence, which is in possession of the prosecution. The offence does not attract the prohibition contained in Section 497, Cr.PC. In view of civil suit pending between the parties in respect of the amount involved, the case against the applicant, prima facie, appears to be of further enquiry as contemplated under sub-section (2) to Section 497, Cr.PC. The case has been challaned and the applicant/ accused is not required to police for investigation.  After grant of interim pre-arrest bail, the applicant has not misused such concession.

8.                Looking to the above circumstances and no objection extended by learned APG, instant bail application is hereby allowed. Consequently, the interim pre-arrest bail granted to the applicant/accused on 21.08.2023 is hereby confirmed on same terms and conditions.

9.                Needless to mention that the findings given above will not affect the trial Court of the case in any manner and the trial Court shall not be influenced from above order.

                                                                                                JUDGE 

Qazi Tahir/*