ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S- 630 of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            1. For orders on MA 2984/10.

            2. For hearing.

19.10.2010

Mr. Amjad Ali Sahito, Advocate for applicant.

Mr. Ahsan Gul Dahri, Advocate for complainant.

Mr. Shahid A. Shaikh, A.P.G for the State. 

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Through this application, Applicant Islamuddin seeks bail in Crime No.191 of 2010 P.S A-Section Latifabad for offence U/s 489-F, 506(2) 504, 34  PPC.

The applicant approached the trial Court but his bail plea was turned down vide order dated 21.8.2010.

Contents of the prosecution case in nutshell are that on 31.7.2010 complainant Mukhtar Ali registered a case against the applicant for offence U/s 489-F, 506(2) 504, 34  PPC on the allegation that applicant issued three cheques of Rs.100,000/- each to the complainant which were dis-honoured on their presentation and subsequently when complainant approached him, he issued threats of dire consequences to the complainant.

            Per learned counsel, the applicant and complainant were business partners and there was a dispute between them due to losses in the business; the alleged cheques pertained to cheque book of six years old which was misused by the complainant by filling the same in his own handwriting; offence for which the applicant has been booked does not fall within the prohibitory clause of Section 497(1) Cr.P.C and in likewise cases basis role is bail and refusal is an exception; per learned counsel the case of applicant is not covered by exceptions laid down by Honourable Supreme Court in Tarique Bashir’s case. In support of his contentions, learned counsel has relied upon the cases reported as Ali Hakimuddin Ghulam Ali Mandviwala Vs. The State and another (2009 MLD 1189), Muhammad Akhtar Vs. The State (2006 YLR 3199) and Muhammad Haroon alias Haroon Rehman Vs. The State (SBLR 2003 SC 69).

            Conversely, Mr. Shahid A. Shaikh, learned A.P.G for the State associated by Mr. Ahsan Gul Dahri, learned counsel for the complainant vehemently opposed the bail plea of the applicant on the ground that his name appears in the FIR  and he has issued cheques which were subsequently dishonoured. Learned counsel for complainant further contended that previously the applicant was charged for the same offences therefore, his bail application may be dismissed. In support of his contentions, learned counsel for complainant has relied upon the cases reported as Shameel Ahmed Vs. The State (2009 SCMR 174) and Abd-e-Momin Thakur Vs. The State (2008 MLD 1114).

            Heard learned counsel for the parties and perused the record.

            No doubt the name of applicant appears in the FIR and it is alleged that he issued three cheques of Rs.100,000/- each to the complainant which were dishonoured on presentation. The Section 489-F PPC is punishable upto 03 years and does not fall within the prohibitory clause of Section 497(1) Cr.P.C. Though the learned counsel for complainant contended that applicant was previously involved in similar offences but he could not place on record any FIR to show that applicant was ever charged for offence U/s 489-F PPC. Since the case has been challaned and accused is no more required for further investigation, no purpose would be served if the applicant will remain in jail. Even it is settled principle of law that an accused cannot be kept behind the bars for an indefinite period even in a heinous crime.

            In the case of Ali Hakimuddin Ghulam Ali Mandviwala (Supra), the accused was granted bail by the trial Court on the ground that offence did not fall within the ambit of Section 497(1) Cr.P.C. Such order was challenged before the Honourable High Court through a Criminal Miscellaneous Application but the Honourable High Court turned down the said Criminal Miscellaneous Application, however the bail amount was enhanced from Rs.200,000/- to Rs.74,59,083/- as accused had issued cheques for the same amount.

            In the case of Muhammad Akhtar (Supra), bail was granted to the applicant on the ground that investigation was complete, challan was submitted and the accused was no more required for further investigation and the offence provided 03 years punishment. Besides the applicant was behind the bars for more than two months.

            In the case of Muhammad Haroon alias Haroon Rehman (Supra), the accused was charged U/s 324 PPC but injuries were described as Shajjah-i-Khaffifah and Shajjah-e-Mudihah, the Honourable Supreme Court admitted the accused on bail on the ground that sentence will not exceed 05 years if the accused is convicted and no useful purpose will be served to keep the accused in custody.

            With profound respect, the law relied upon by learned counsel for the complainant is distinguishable and not applicable to the case in hand.

            In Shameel Ahmed’s case (Supra), the bail was refused to accused as previously he was involved in three cases of similar kind and he was prima facie found to be a habitual offender of issuing cheques and defrauding the people.

            In the case of Abd-e-Momin Thakur (Supra), the bail was refused to accused on the ground that he took a plea that described cheque was obtained forcibly but he did not make any complaint in that behalf.

            For the foregoing reasons, I am of the considered view that applicant has successfully made out a case for grant of bail. Consequently, the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.300,000/- (Three lac) and P.R Bond in the like amount to the satisfaction of the trial Court.  

            Above are the reasons of my short order dated 19.10.2010.

JUDGE

Tufail