ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  208    of    2013

DATE        ORDER WITH SIGNATURE OF JUDGE

13.08.2013.

Miss Farida Khan, Advocate for applicant.

Mr. Rao Muhammad Mustaqeem, Advocate for complainant.

Syed Meeral Shah, D.P.G. for the State.

                                    =

            The applicant has prayed for post-arrest bail who is booked in Crime No.08/2013 registered at police station Tando Jam for offence u/s 489-F P.P.C.

            The allegation against the present applicant is that complainant namely Waseem Sadiq gave Rs.300,000/- to the applicant Syed Qamar Alam for purpose of business of motorcycle and further told that profit would be distributed equally but despite lapse of sufficient time, the said person did not return the amount to the complainant as such he demanded his amount from him but applicant kept him on false hopes and finally gave him a cheque No.08692017 of Account No.00860024566101 dated 03.01.2013 of Habib Bank Limited Latifabad No.7 branch, amounting to Rs.300,000/- The said cheque when was presented in the Bank was dishonoured, therefore, the complainant by moving an application u/s 22-A and B Cr.P.C. before the Ex-officio Justice of Peace, obtained order for recording FIR and consequently the FIR was registered.

            The accused was arrested on 08.02.2013 and his bail plea was not accepted by the learned Civil Judge and Judicial Magistrate-I, Hyderabad and said order was upheld by VIth Additional Sessions Judge, Hyderabad on 11.03.2013.

            The learned counsel for the applicant has argued that there is a business transaction between the complainant and applicant and applicant has paid Rs.84,000/- and a golden ring to the complainant but no statement is being made by the complainant; that accused is behind the bar since 08.02.2013 and even no charge has been framed by the trial Court; that the alleged offence does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. and grant of bail in such cases is always held as a rule and refusal as an exception; that no proof has been furnished by complainant before the trial Court that the present applicant was ever involved or convicted in any other case; that mere pendency of other cases against the present applicant would be hardly a ground for refusal of bail in cases where maximum punishment is not more than 03 years. In support of her contentions, learned counsel has relied upon the cases reported as Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488), Sultan Ahmed v. The State (2007 YLR 2723) and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708).

            The learned counsel for the complainant has argued that grant of bail to accused in other case is not a rule of universal application and each case is to be decided on its own merits. Per learned counsel, the present applicant has also issued another cheque to another person for amount of Rs.300,000/- and such FIR has been registered against him, therefore, he is a habitual offender and his case falls within the exceptions reported in 1995 SCMR 34. In support of his contentions, learned counsel has placed reliance on the cases reported as Shameel Ahmed v. The State (2009 SCMR 174), Sohail Ahmed Babar v. The State and another (2008 SCMR 966), Naveed Maqsood v. The State (2012 YLR 674) and Riaz Jafar Natiq v. The State and another (2012 MLD 232).

            The learned D.P.G. for the State has supported the contentions of learned counsel for the complainant.

            I have heard learned counsel for the parties and perused the material available on record.

            The applicant has been arrested in this FIR on 08.02.2013 for dishonor of cheque only amounting to Rs. 300,000/-; challan according to learned prosecutor has already been submitted in the Court in the monthf of February 2013 and since last six months, the accused is behind the bar; he is not required for the purpose of investigation at this stage; the charge has yet not been framed as claimed by learned counsel for the applicant; the maximum punishment u/s 489-F PPC is 03 years thus the offence alleged does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. and in case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) where a case falls within the ambit of prohibitory clause, the concession of granting bail must be favourably considered and should not be declined in exceptional cases. Mere pendency of another criminal case or registration of another FIR against the applicant could not be held as valid ground for refusal of bail until and unless it is brought on record that applicant is convicted in a case of this nature. It is settled principle of law that precedent in criminal cases have no universal application because each case is to be dealt with on its own facts and circumstances, therefore, the case law relied by learned counsel for the complainant have no relevancy in the circumstances of this case.

            In view of above circumstances, I am of the opinion that the applicant has made out a case for grant of bail. Accordingly, the bail application is allowed and the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.

                                                                                                            JUDGE                                                          

Tufail