ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Appln. No. 1105 of 2016_____________________________________________________
Date Order With Signature Of Judge
__________________________________________________________
For hg of bail application
20.01.2017.
Mr. Wazeer Hussain Khoso, advocate for applicant.
Mr. Abdullah Rajput, A.P.G.
Complainant is present in person.
ZAFAR AHMED RAJPUT, J:- Having rejected his earlier application bearing Criminal Bail Application No. 584 of 2016, vide order dated 01.08.2016 passed by the learned Ist. Additional Sessions Judge, Karachi-Central, the applicant/ accused through instant Criminal Bail Application has sought pre-arrest bail in Crime No. 41 of 2016, registered at P.S. Yousuf Plaza, Karachi Central, under section 489-F P.P.C. He was admitted to interim pre-arrest bail by this Court, vide order dated 03.08.2016, now he seeks confirmation of his bail.
2. Briefly stated the facts of the case are that complainant Sajida Sultana wife of Zulfiqar Ahmed lodged the aforementioned F.I.R. on 07.06.2016, alleging therein that about three and half years ago Badar Zaman (present applicant/ accused) received an amount of Rs.24,00,000/- in connection with his business on the pretext that he would pay her profit on the said amount till such amount remained with him; thereafter, the accused neither refunded the principal amount nor even paid profit accrued thereon despite repeated requests. However, the accused issued two cheques of his account on 01.12.2015, amounting to Rs.12,00,000/- each, drawn on MCB Water Pump Branch, F.B. Area, Karachi in favour of complainant and when on 29.01.2015, the said cheques were presented for encashment with the bank concerned, the same were dishonoured.
3. Learned counsel for the applicant has contended that the applicant is innocent and has falsely been implicated in this case; that much before the lodging of the F.I.R., the applicant on 06.11.2015 lodged a report with S.H.O. P.S. Yousuf Plaza for missing of his cheques; that even otherwise it is yet to be determined that the alleged cheques were issued by the applicant for fulfillment of any obligation to complainant; that no plausible explanation has been furnished by the complainant, as to why she remained silent for 3 ½ years and she did not lodge her claim for the payment of her amount; that the alleged offence being punishable for three years, does not fall within the prohibitory clause of section 497, Cr. P.C. and there is not previous record of the applicant for indulging in such like offences, therefore, he is entitled for the confirmation of his bail.
4. On the other hand, learned A.P.G. submits that there is sufficient evidence to bring home guilt against the applicant/ accused; that both the cheques bear the signatures of the applicant and this fact has not been denied even by the applicant; that merely the complainant waited for three years for the payment of profit and return of the principal amount cannot be based for the grant of pre-arrest bail as no malafide or ill will has been shown by the applicant against the complainant, therefore, he is not entitled to the concession of pre-arrest bail.
5. Heard learned counsel for the applicant as well as learned A.P.G. and perused the material available on record.
6. As per the contents of the F.I.R., the applicant entered into an agreement with the complainant for investment of money in his business on profit basis, however, the date, place and witnesses before whom the alleged agreement was made between the parties has not been mentioned in the F.I.R; therefore, it is yet to be determined if the alleged cheques were given by the accused to the complainant towards the fulfillment of any obligation, and thus the question regarding applicability of the provisions of section489-F, P.P.C. to the allegation against the applicant calls for further probe at this stage. The alleged offence does not fall within the prohibition clause of section 497, Cr.P.C. and admittedly there is no previous record of the applicant in indulging in such like cases. The applicant was admitted into ad-interim pre-arrest bail by this Court, vide order dated 30.08.2016 and since then admittedly he is attending the trial Court regularly and at no point of time he misused the concession of ad-interim bail, granted to him. I, therefore, confirm the interim bail, already granted to applicant, however, considering the fact that the cheques allegedly were issued for the sum of Rs.24,00,000/-, I deem it appropriate to enhance the amount of surety from Rs.1,00,000/- to Rs.12,00,000/-, which the applicant shall furnish within a period of fifteen days and fresh P.R. bond for the like amount. With this modification in terms and conditions, the ad-interim bail, granted to the applicant, vide order dated 03.08.2016 is hereby confirmed.
JUDGE