Cr. Bail Application No. 265 of 2016

Date Order with Signature of the Judge

1) For orders on office objection at flag ‘A’.

2) For hearing of M.A.No.1817/2016.

3) For hearing of Bail Application.

29^th March, 2016.

Mr. Aamir Mansoob Qureshi, Advocate for applicant.

Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.

Mr. Ghulam Mujtaba Phiull, Advocate for complainant.

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SYED MUHAMMAD FAROOQ SHAH, J.:- The applicant Muhammad Hanif son of Muhammad Usman Dad booked in FIR No.403/2015, registered with Police Station Defence, Karachi under sections 489-F,408,506 PPC was declined bail by the trial court vide order dated 01.12.2015 hence he approached this Court.

2. Prosecution story as narrated in the aforementioned FIR is that on receipt of application from the higher ups with directions to register the case, the said application was incorporated into FIR, wherein the complainant had stated that the accused was their employee in a company named and titled as “MGM”. During his tenure of service the accused caused financial losses of about Rs.2 crores which was revealed during audit, i.e. an amount of Rs.1,50,00,000/- in shape of cash while the rest loss amount was caused in shape of goods; he also damaged the position of company. For fulfillment of losses accused issued cheques amounting to Rs.50,00,000/-, second cheque for Rs.40,00,000/- and third cheque for Rs.56,84,000/-, which were bounced. It is further stated in the said application that on contact the accused issued threats for killing through his friends and on approach at Police Station no action was taken against him. It is further stated in the said application that the accused has sold out the car of complainant besides other machinery. On registration of FIR against the applicant/accused and one Ahmed Shah Kashif, the police started investigation and on completion of usual investigation, the concerned police had submitted final report under section 173 Cr.P.C. with the request to dispose of the challan in ‘C’ class but the trial court has accepted the challan vide order dated 02.11.2015. The reasons of submitting the report under section 173 Cr.P.C. in ‘C’ class are mainly based on the order dated 17.4.2015, passed in Constitutional Petition No.S-32 of 2014 by this court and a summary suit No. 108 of 2015 pending against the accused. Record reflects that after delay of four months of passing the order by this court the complainant has lodged the FIR of instant case.

3. Arguments heard. Record perused.

4. Learned counsel for the applicant submits that the applicant is 74 years of age, an ailing person having history of chronic cardiac disease, may be released on bail; more particularly, the case does not fall within the prohibitory clause of section 497 Cr.P.C. as allegedly it is a case of transaction of settlement of account for which complainant has already filed civil litigation in shape of summary suit pending before the court of law. it is further submitted that the accused is being harassed by the complainant party and was compelled to sign three different cheques as well as blank stamp paper; that much prior to lodging the FIR in the month of December, 2014, the applicant has wrote a letter to SHO Police Station defence Karachi, received on 30.12.2014, whereby the applicant has informed the illegal act of complainant who has forcibly obtained three cheques which is sufficient to prove the falsity/maintainability of instant FIR. It is submitted that the prosecution is not in possession of any cogent evidence to make out prima facie case against the applicant as there is no direct evidence accepting the said cheques. It is contended that case falls under section 497(2) Cr.P.C. being of further enquiry. Charge sheet has already been submitted and old man is behind the bar, who shall execute bond not to temper with the evidence of prosecution. It is further contended that law leans in favour of bail rather in jail; besides for making tentative assessment of evidence at bail stage, deeper appreciation may not be considered as held by Hon'ble Apex Court in the case of SUBA KHAN V/S MUHAMMAD AJMAL (2006 SCMR 66). Learned counsel for the applicant has also placed reliance on the cases of MUHAMMAD SARFRAZ V/S THE STATE (2014 SCMR 1032), RIAZ JAFAR NATIQ V/S MUHAMMAD NADEEM DAR & OTHERS (2011 SCMR 1708) and ZAIGHAM ASHRAF V/S THE STATE (2016 SCMR 18).

5. Conversely, learned counsel for the complainant submitted that transaction of huge amount has been alleged on the part of accused who has dishonestly issued cheque and since the accused has specifically been nominated in the FIR, therefore, he is not entitled for grant of bail. To support his contention, he has relied upon the case of TAHAIR SIDDIQUE V/S THE STATE (2010 YLR 3034).

6. On hearing both the sides at length and after going through the relevant provisions of law and citations mentioned above, I reached at the irresistible conclusion that the accused has succeeded to establish the grant of bail in view peculiar facts and circumstances of the instant case. It may not be out of context to mention here that in our country liberty of individual has been guaranteed by the Constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the provision of section 497 Cr.P.C in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for indefinite period. The delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. In the instant case, the applicant being an ailing person of 74 years of age, allegedly involved in misappropriation of embezzled amount mentioned above, cannot be put in jail for indefinite period as on framing of the charge the prosecution has not even examined a single witness through trial court.

7. In the last but not least, it is not out of context that the concept of bail in identical cases has elaborately been dilated upon by the Indian Supreme Court in the case titled as SANJAY CHANDRA V/S CENTRAL BUREAU OF INVESTIGATION (AIR 2012 SC 830), which reads in the following words :-

“ In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted person should be held in custody pending trial to secure their attendance at the trial but in such case, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will temper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of a bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.”

8. The concept of bail in the same judgment has further been elaborated in the following words :-

“In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.”

9. For the foregoing reasons, more particularly, in light of the settled legal position, as discussed above, without prejudice to any party, I have no hesitation to hold that applicant is entitled to the grant of bail. Accordingly, the applicant is admitted to bail subject to his furnishing surety in the sum of Rs.5,00,000/- (Rupees five lac only) and P.R.Bond in the like amount ot the satisfaction of trial court.

10. Before parting with the order, it needs not to make clarification that the observations recorded above are tentative in nature and relevant for the purpose of this bail application, therefore, the trial court shall not be influenced in any manner whatsoever.

Captioned bail application is disposed of in the terms and manner indicated above.

*Aamir/PS* J U D G E