ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail A. No.612 of 2013

   Date                              Order with signature of Judge

For Hearing

02.7.2013

Mr. Shahnawaz, Advocate for the applicant.

Mr. Jamil Ahmed, Advocate for the complainant

Ms. Rahat Ahsan, State Counsel.

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MUHAMMAD SHAFI SIDDIQUI,   J:       This bail application was filed pursuant to an FIR bearing No.49/2012, lodged under Section 489-F PPC at Police Station Model Colony. Brief facts of the case are that the complaint runs business of seeds and fertilizer under the name and style of Shifa Enterprises and address of his business place is mentioned therein. It is the case of prosecution that the accused used to purchase seeds and fertilizer for land and as such their dealing and transaction in the business normally were carried on the basis of cheques. In this Case the transaction is took place for purchase of seeds was allegedly settled by tendering cheque bearing No. 6097835, Current Account No.01034121 in the sum of Rs.700,000/-, which was crossed cheque as the amount to be deposited in the Account of complainant namely Tahir Aziz, the cheque was placed for encashment in the account of the complainant. However it revealed to the complainant that the cheque was bounced on account of insufficient fund. Subsequently, the complainant lodged the FIR under Section 489-F. Subsequently, the applicant filed bail before arrest which was declined by the trial Court as well as this Court being bail application No. 620 of 2012 vide order dated 17.4.2013. Subsequently both the bail applications (Bail Applications after arrest) were dismissed by the Magistrate and by the Sessions Court. Ultimately the applicant has moved this bail application which is the bail after arrest. Learned counsel for the applicant has argued that the applicant has never signed the cheque which cheque book was reported to be stolen in terms of the report available at page 43 allegedly dated 14.10.2010. It is further argued that they have no relationship with the complainant as he has never purchased any seeds or fertilizer for the land of the complainant. It is further alleged that the investigation of the I.O. shows that the complainant misled the authorities as he never run business under the name and style of Shifa Enterprises and the investigation shows that the address of a house and no more was affixed at the house which could be contacted at the place. Learned counsel submits that the signatures of the applicant in the disputed cheque was found dis-similar to the signature obtained by the learned Magistrate and as such it proves and establishes that cheque was never issued by the applicant. The learned counsel for the applicant submitted that the applicant is willing to give double even triple security hence he is entitled for the bail. Learned counsel for the applicant has relied upon the following case laws:-

2011 S.L.J. 1421 – Insaf Ali Vs. The State.

J.M. Case No. 4279/2012 – The State Vs. Muhammad Aslam

Established that the applicant is entitled for the bail. Conversely the learned counsel for the complainant has assisted this Court and reached to the factual position that earlier bail applications including bail before arrest and after arrest were dismissed. It is urged by the complainant’s counsel that the bail before arrest application was dismissed by this Court on 15.4.2013 and the Challan was submitted on 18.12.2013 and further submitted by the learned counsel for the complainant that since lodging of the FIR five I.Os. were changed and one of the I.Os. submitted report under ‘C’ Clause which report was declined by the learned Magistrate. It is pertinent to point out that in that report the I.O. has relied upon the reports obtained through Forensic Lab in terms of signatures were compared. There is two disputed conversion in terms of the specific signatures according to the prosecution the earlier report dated 9.5.2012 the signatures were similar, whereas subsequently on 11.7.2013 the signatures were found to be dis-similar. Be that as it may the learned Magistrate in view of the reasoning given by the I.O. while placing the report under ‘C’ Clause disagreed and directed the I.O. to submit Challan. Learned counsel for the complainant further relied upon the following case laws:-

2011 P.Cr. L J. 752 (Lahore) – Asad Ali Vs. The State.

2011 P.Cr. L.J. 265 (Lahore) – Aamir Hussain Vs. The State.

2011 MLD  1213 (Sindh) – Shahid Pervaiz Vs. The State.

2012 P.Cr. L.J. 918 (Sindh) – Muhammad Naseem Vs. The State.

2013 YLR 626 (Islamabad) – Syed Amir Jalali Vs. The State.

2012 MLD 799 (Peshawar) – Wajid Aman Vs. The State.

2012 YLR 674 (Sindh) – Naveed Maqsood Vs. The State.

2009 SCMR 174 – Shahmeel Ahmed Vs. The State.

          I have heard learned counsel and perused the record at the very outset  question was put to the applicant as to whether when disputed cheque was stolen, the Bank Manager was apprised such fact or not the applicant answered in negative i.e. after the cheque was stolen the Bank Manager was never informed about such incident. It is further informed by the learned counsel that non-cog report was submitted before the concerned Police Station. It is a matter of fact that the cheque was bounced on account of insufficient funds and not on account of alleged reason that the stolen of cheque, according to the applicant, was never issued to the complainant. I have perused the order passed by this Court in Bail Application No. 620 of 2012 in terms whereof the pre-arrest bail was dismissed which substantially contained the same facts and grounds raised in this bail application. No fresh grounds, particularly after recording of the evidence one of the I.O. placed on record that except the version of the applicant in terms of the evidence and cross-examination of the I.O. the complainant was not found to run business under the name and style of Shifa Enterprises. Learned counsel for the applicant has further urged that since it is a case which does not fall under the prohibitory clause, therefore, the applicant is entitled for the bail. In this regard it is submitted that rule was not the base with regard to the concession in granting bail i.e. differs from case to case, therefore only for that reason for the offence does not fall under the prohibitory clause it does not automatically become the case for granting bail. The case should be considered on the basis of material as available while granting the relief to the applicant. This question of falling the case under the prohibitory clause was discussed in the case of Shahmeel Ahmed Vs. The State 2009 SCMR 194, grant of bail in cases not falling within the domain of prohibition clause of proviso to Section 497 Cr.P.C. is not a rule of universal application it is a discretion which is normally exercise by the Court and it cannot be exercised arbitrary and fancifully.

          The contents under Section 489-F for the perusal as reproduced as also the contents of the FIR clearly manifest the dishonesty. For reaching the conclusion as to whether offence under Section 489-F is bail out or not the applicant’s attitude towards the cheques need not to be further established as he has failed to inform the concerned Manager of the Bank regarding the alleged misappropriation of cheque which was allegedly stolen. The applicant has not been able to this fact satisfactorily as to why this information was not given to the Manager. It also creates an impression that before issuing cheque to the complainant he might have managed to lodge this non-cognizance report to save his skin from future dispute. With these reasons I am clear in my mind that the applicant is not entitled for concession of bail and this bail application is dismissed. At this stage the learned counsel for the applicant concedes that he is willing to approach the trail Court. The trial Court is directed to conclude the trial within two months.

JUDGE

Fida, P.S.