ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 387 / 2010.
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Date Order with signature of Judge |
For hearing.
26-04-2010
Mr. Ghulam Mustafa advocate for the applicant/accused.
Mr. Abdullah Rajput A.P.G for State.
AHMED ALI M. SHAIKH, J. Through this application the applicant Nasir Jameel seeks post arrest bail in crime No. 663 of 2009 of P.S Darkhshan, registered for an offence U/S 489-F P.P.C.
The contents of the prosecution case in nut shell are that complainant Muhammad Kalamuddin set the law into motion through F.I.R No. 663/09 stating therein that he is owner of Travelling Agency and Nasir Jameel is his partner, who on various occasions used to purchase air tickets of various airlines for which he issued him a cheque of Rs.1,600,000/- of Account No. 620101012171 of Askari Commercial Bank. The complainant presented the cheque but same was dishonoured.
The bail plea of the applicant was turned down by the trial Court as well as Sessions Judge Karachi (South).
It is inter alia contended that the applicant is innocent and has been falsely implicated on behest of the complainant due to ulterior motive and malafide intention, there is delay of one month in lodging the F.I.R and no explanation has been furnished by the complainant. He further contended that the cheque in question was issued in the name of Treminus Travel Agency and the complainant as well as present applicant both are partners of the aforesaid travel agency.
Conversely Mr. Abdullah Rajput learned A.P.G appearing for the State has opposed the bail plea of the applicant on the ground that he has issued cheque which was dishonoured, therefore, he does not deserve the concession of bail.
Heard the learned counsel appearing for the respective parties and perused the record.
It is admitted fact that the cheque in question was issued by the present applicant which was dishonoured. No doubt the offence does not fall within the prohibitory clause of section 497 (i) Cr.P.C and in like wise cases basic rule is bail and refusal is an exception as laid down in the case of Tariq Bashir V/s The State (PLD-1995-Supreme Court-34). However in cases which fall U/S 489-F P.P.C consideration are quite different. Through insertion of section 489-F P.P.C, the intention of the law makers is quite clear i.e to transform a civil transaction into an offence by shifting the burden of proof from prosecution upon the shoulders of accused with sole intention to eradicate such menace as there is growing tendency of issuing cheques without arranging sufficient funds to honour the cheque, therefore it would be safe to conclude that in absence of initial presumption of innocence in favour of accused person and availability of sufficient material in the form of dishonoured instrument to connect such accused person with the commission of offence, grant of bail “as of rule” can by no stretch of imagination be termed to be in consonance with the principle laid down in the case of Tariq Bashir (Supra) and, therefore, Court should be strict in exercise of discretion of bail to a person charged with such offence as laid down in Al Hakimuddin Ghulam Ali Mandviwala Vs. The State (2009-MLD-1189). However the facts of the case in hand are quite distinguishable viz: the partnership of the complainant and applicant in the travelling agency, as stated by the complainant in the F.I.R.
Sine the applicant and complainant are business partners, as admitted by the complainant and in such circumstances issuance of some cheque can be as a result of above said business narrated in the F.I.R, therefore, I am of the considered view that the case of the applicant requires further inquiry, and he deserves the concession of the bail. I, therefore, admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.1,600,000/- (Rupees Sixteen Hundred Thousands only) and P.R bond in the like amount to the satisfaction of the trial Court.
JUDGE
ABDUL SALAM P.A