ORDER
SHEET
-------------------------------------------------------------------------------------------
Date Order with signature of Judge
-------------------------------------------------------------------------------------------
PRESENT: MR.
JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE SALAHUDDIN PANHWAR_
DATE OF HEARING 31.07.2012
M/s
Ch. Abdul Rasheed and M. M. Tariq Advocates for the Applicants.
Ms.
Shiraz Iqbal, Standing Counsel a/w Syed Ghazanfar I.O.
of the case.
Syed Hasan Azhar Rizvi J; By this common order, we intend to dispose off two Crl. Bail Applications Nos.23 and 25 of 2012 as both the aforesaid Bail Applications have arisen out of one and same FIR bearing No.54/2011 registered under section 409/420/467/468/471/34/109 PPC at P.S. F.I.A., CBC, Karachi.
Brief
facts of the case are that on the complaint of Naveed Mukkram operation Manager
HBL, Bahadurabad Branch, Karachi an FIR was registered by FIA, CBC, Karachi on 30.11.2011. The complaint was incorporated in the
FIR wherein it is narrated that during the business hours two cheques amounting
to Rs.3,85000/- and Rs.1,35000/- were presented by Mr. Abid Hafeez alongwith
two other persons namely Muhammad Sadiq and Malik Sajid but the Cashier found
that both the cheques were fake. It is further narrated that Cashier of the Bank
had asked about identity of the presenters and whereabouts of the account
holders but they failed to give their justification, therefore, they were
detained and then both the culprits namely Abid Hafeez and Muhammad Sadiq were
brought before the FIA for registration of the case. It is also mentioned in
the complaint that one cheque amounting to Rs.4,92,500/-
of account holder Sabita and Ashraf was also not cleared as it was
fake/scanned.
M/s Ch. Abdul Rasheed and M.
M. Tariq Advocates for the Applicants contended that the Applicants are
innocent and they have been falsely implicated by the prosecution with malafide
intention and ulterior motives. It was further contended that no overt act has
been attributed to the Applicants for their involvement in this case. The only
allegation is that they were present alongwith other accused persons in the
bank while they had not presented any cheque to the Cashier for encashment. It was
submitted that the alleged offence does not come under the ambit of Federal
Investigation Agency, which has no power and jurisdiction to take the
cognizance and to investigate the instant matter. The Applicants are neither
the Banker nor public servant and the provision of section 409 PPC are not
applicable. It was urged by the learned Counsel that no incriminating article
including cheques in question, scanning machine other equipment have been
recovered from the present Applicant, which proves the malafide on the part of
the complainant. It was further contended that the case of the Applicants does
not fall within the prohibitory clause of section 497 Cr.P.C. Learned Counsel
for the Applicants further contended that the Applicants are not previous
convict and there is no reasonable grounds to connect the Applicants with
alleged crime. According to the learned Counsel the case of the Applicants are
of further inquiry as such they are entitled for concession of bail at this
stage on merits. Learned Counsel relied upon reported in 1996 SCMR 1132 (Saeed
Ahmed versus the State), 2010 YLR 1903 (Tahir versus the State) and 2004 SCMR
235 (Fazal Ellahi and another versus the State).
Ms. Shiraz Iqbal learned
Standing Counsel vehemently opposed the grant of bail to the Applicants and
submitted that the both the Applicants were arrested red-handed while
presenting the cheque in the Bank/branch.
We have heard M/s Ch. Abdul Rasheed and M.
M. Tariq Advocates for the Applicants, Ms. Shiraz Iqbal learned Standing
Counsel and have perused the relevant material available on
record with their assistance.
It is an admitted position that most of the
accused, implicated in the present case, have been granted bail in the crime by
the Trial Court and no application for cancellation of the bail has been filed
so far by the prosecution. Photocopies of the certified copies of the bail
granted orders of co-accused persons have already been placed on record. Prosecution’s
plea was that accused being beneficiary of forged documents would be presumed
to have prepared the same. Neither original document nor any material was
available on record to show that Applicants/accused had prepared said documents.
Question as to whether or not accused had prepared forged documents, could be
decided by the Trail Court only after recording of the evidence. The case
entirely depends upon documentary evidence which seems to be in possession of
the prosecution and challan has already been submitted. In the case of Ahsanullah
A. Khairi versus the State reported in 2010 YLR 1902, wherein it is held that:-
“Cheating, forgery and using genuine a
forged document. Bail, granted of. Except for the confession which accused
was stated to have been made before the Bank Officials, there seemed to be no
material directly implicating accused with the commission of crime. Actually
the role of opening the account, depositing of the forged draft, withdrawing of
the amount of the said demand draft from the bank account, all were alleged
against co-accused, who had been granted bail. Investigation had been
concluded, challan had been filed and the matter was before the Trial Court and
there seemed to be no further need of accused in respect of investigation of
the crime”.
In another case of Fazal Ellahi and
another versus the State reported in 2004 SCMR 235, the Honourable Supreme has
held that:-
“Investigation
in the case had been completed and they were no more required by the
Investigating Agency. Challan had been submitted in the Court and keeping the
accused in custody would serve no purpose. Petition for leave to appeal was
converted into appeal in circumstances and the accused were admitted to bail
accordingly.
Above are the reasons of our short
order dated 31.07.2012, whereby we granted bail to the Applicants subject to
furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac only)
each and P.R. Bond in the like amount to the satisfaction of the Trial Court.
Observations made hereinabove are of
tentative nature and the trial Court shall not be influenced by any such
observations.
J
U D G E
Karachi.
Dated:
______________ J
U D G E