IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-406 of 2024.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON'BLE JUDGE |
1. For orders on office objection 'A'.
2. For orders on M.A.No.4229/2024.
3. For hearing of bail application.
25.09.2024.
Mr. Safdar Ali G. Bhutto, advocate along with applicant.
Syed Shafquat Ali Shah, advocate for the complainant.
Mr. Aitbar Ali Bullo, D.P.G.
O R D E R .
Khadim Husain Soomro, J-Through instant bail application, applicant Nisar Ahmed, son of Nazir Ahmed Khoso, seeks pre-arrest bail in Crime No.65 of 2024 registered at Police Station B-Section Kandhkot for an offence punishable under section 489-F, P.P.C.
2. Complainant Din Muhammad lodged the F.I.R. on 19.06.2024, at 2100 hours, stating therein as under :
"Complaint is that I have sold out a plot area 16200 feet, situated at Nek Muhammad Suhiriyani Road, Kandhkot town, to accused Nisar Ahmed, son of Nazir Ahmed Khoso, resident of village Muhammad Moosa Khan Khoso, for total consideration of Rs.6700,000/- and Rs.4340000/- have already been paid and for balance amount Nisar Ahmed khoso issued a delivered Cheque No.38603564, dated 10.12.2023 of his Account No.0112015610159918 of U.B.L. Bank Kandhkot Branch and another Cheque of same Bank bearing No.38603565 dated 10.05.2024 of Rs.62,00,000/- and the amount of first cheque was Rs.500,000/-. I kept visiting the bank time and again. The first cheque was presented in Faisal Bank Kandhkot Branch for encashment on 10.03.2024, which was returned on the ground that the amount was not available in the above account. Another cheque of Rs.62,00,000/- was presented in Bank IslamiKandhkot on 14.05.2024 for encashment, where it was also disclosed that no amount was available in the account; hence, I approached accused Nisar Ahmed Khoso, saying that no amount was available in his accounts, who replied that he would pay the amount later on. On 13.03.2024, I, along with my friends everyone, 1) Nasrullah, son of Jamaluddin Chijjan & 2) Muhammad Ramzan, approached accused Nisar Ahmed Khoso and demanded my amount who refuse to return it, saying that he would neither payback the money to me nor will return back the plot. We then complained to his Nekmards, but the accused did not pay back the money. I then filed such application in the Court of Sessions Judge, Kashmore, and the Hon'ble Court passed orders for registration of F.I.R., hence by producing the order I am lodging the F.I.R. and investigation may be made."
3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case with mala fide intentions and ulterior motives; that there is more than 03 months delay in the lodging of F.I.R., for which no plausible explanation has been furnished by the complainant; that the cheque was not dishonestly issued by the applicant to the complainant; that as per contents of F.I.R., the complainant has sold out a plot admeasuring 16200 sq. feet in total consideration amount of Rs.6700,000/-, out of which Rs.4,340,000/- was paid and for the remaining consideration amount, the cheques amounting to Rs.5,000,000/- and Rs.6,200,000/- were issued; that during course of investigation, the I.O recommended the case under 'C' class, but the learned Magistrate did not agree with the repot and took cognizance of the case; that offence under section 489-F is punishable for three years and does not fall under prohibitory clause of section 497 Cr.P.C; that the case of applicant calls for further inquiry. Therefore, he requests for confirmation of bail.
4. Conversely, learned D.P.G and learned counsel for the complainant vehemently opposed the confirmation of bail on the ground that, in fact, the plot in question was sold out to the applicant for consideration of Rs.130,000,000/-, but the same was mistakenly written as Rs.6700000/- as consideration the amount of plot in question; that the applicant has issued the cheques in favour of the complainant, which was dishonoured on their presentation, therefore, in any manner the applicant does not deserve the concession of extraordinary relief in shape of pre-arrest bail.
5. I heard learned counsel for the applicant, learned counsel for the complainant, learned D.P.G., and perused the material available on record.
6. The cheque is classified as a negotiable instrument intended to be issued in exchange for some consideration. The contents of the First Information Report (F.I.R.) indicate that the cheques in question were issued for the payment of a plot, with the transaction between the complainant and the applicant being formalized through an agreement. This agreement, however, was not submitted to the Investigating Officer (I.O.) during the course of the investigation. Consequently, the I.O., in light of the investigation, recommended the case for disposal under 'C' class. There is a lack of evidence pertaining to the specified components outlined in section 489F of the Code, which may bring it within the ambit of mala fide on the part of the complainant. In the circumstances, this also makes it a case of further inquiry. The reliance can be placed in the case of BASHIR AHMED V/S The STATE and another, 2023 S C M R 748.
7. It is a well-settled principle of law that further inquiry refers to a question closely related to a case's outcome, where a tentative evaluation of the available evidence is necessary to arrive at a fair and equitable conclusion. The situation of inquiry pre-supposes assumes the tentative assessment, which may generate uncertainty regarding the culpability of the accused in the criminal act. It is widely established that the primary purpose of a trial is to ensure that an accused undergoes the legal process rather than to punish an accused who is awaiting trial. The fundamental concept entails affording the accused the opportunity to respond to the charges levied against them rather than subjecting them to prolonged incarceration.
8. The offence alleged to be committed by the applicant accused does not come within the restriction provided in section 497 of the Cr.P.C. In the case of Muhammad Tanveer V. State (PLD 2017 SC 733), the Supreme Court of Pakistan has expressed astonishment and sadden that bail is routinely denied in situations where an offence doesn't come within the restriction provided in section 497 of the Cr.P.C. on dubious justifications and the same was considered as an unnecessary financial burden on the general public, in term of their food and transportation to the courts. The relevant ratio of the judgment is reproduced as under:-
"We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation".
9The Supreme Court of Pakistan, in the 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, 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 exceptions on the basis of the material available on the record. In the case at hand, the prosecution has failed to establish any of the above grounds, meriting the denial of the applicant's application. The Honourable Apex Court also settles 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.
10. Under these circumstances,the instant application is allowed, and the interim pre-arrest earlier granted to the applicant vide order dated 24.07.2024 is hereby confirmed on the same terms and conditions.
11 Needless to mention here that the observations made herein-above are tentative in nature, which shall not prejudice the case of either party at trial.
Judge
M Yousuf P/**