ORDER SHEET
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Date Order
with signature of Judge
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Dated of hearing 27.10.2015
Syed Zulfiqar Haider Shah Advocate for Applicant.
Mr. Iqbal Awan APG Sindh for
the State.
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Syed Hasan Azhar Rizvi J; This bail
application is filed by the Applicant after rejection of his bail application
vide order dated 16.09.2015 passed by the VIII Additional Sessions Judge,
Karachi-South in Crl. Bail Application No.1809/2015.
Facts of the case in nutshell are
that the Applicant borrowed Rs.50,00,000/- (Rupees
Fifty Lacs only) from the complainant and issued a cheque No.2622552 dated
15.05.2015 for the said amount and on its presentation before the bank said
cheque was bounced.
Learned Counsel for the Applicant contended that the Applicant is absolutely
innocent and has been falsely implicated by the complainant in the present case
with malafide intention and ulterior motives. Learned Counsel for the Applicant
further contended that said cheque was not issued by the complainant and it was
stolen/misplaced for which applicant has already been
lodged a report/complaint at concerned police station. He further contended
that there is no business or any other type of dealing in exists with the
complainant with the present applicant. He urged that the FIR was lodged with
the delay of forty (40) days, which makes the case of the prosecution doubtful.
Learned Counsel for the Applicant submitted that Applicant is ill and old aged
about 55 years, therefore, he is also entitled for grant of bail medical ground. He has placed
reliance upon 2011 SCMR 1078 and YLR 2012 879.
Learned APG for State has vehemently opposed the grant of bail to the
Applicant and submitted that the Applicant has defrauded the complainant for a
huge amount and earlier he has committed same offence many times, which shows
that he is habitual offender, therefore, he is not entitled for grant of bail
at this stage. He has relied upon 2009
SCMR 174.
I have heard Syed Zulfiqar Haider Shah Counsel for the Applicant, Mr.
Iqbal Awan learned APG Sindh for State and perused the material available on
record as well as case law with their assistance.
According to the contents of
Challan, during investigation the Investigating Officer verified the bounced
cheque from the concerned bank whereupon the Bank Manager stated about closing
and blocking of the account of the Applicant/accused, which shows the said
cheque was issued by the Applicant deliberately after closing/blocking of his
account. Admittedly, five FIRs viz. (1) No.134/2015 at P.S. Boat Basin, (2)
No.382/2014 at P.S. Boat Basin, (3) No.350/2014 at P.S. Ferozabad, (4) No.204/2014
at PS. Gizri and (5) No.373/2014 at P.S. Gizri, have been lodged in one and
same section i.e. 489-F PPC, which shows that applicant is habitual offender of
cheating and defrauding the innocent people by borrowing huge amount from them
and issuing cheques of closed and blocked account.
According to learned Counsel,
a complaint (entry in roznamcha) of theft of cheques was made at P.S. Boat
Basin on 26.04.2013 but surprisingly no numbers of stolen cheques have been
mentioned therein, however, it is mentioned in said roznamcha entry that the
Applicant was a jeweller. A perusal of first FIR bearing No.204 at P.S. Gizri
lodged by the present complainant for dishonour of two cheques issued by the
present Applicant on dispute of Ten Tolas Gold, shows that the version of the
complainant of dispute of gold is appealable to the mind of a prudent man. It
is also surprising that the Applicant lodged a complainat/roznamcha entry at
police station of stolen of cheques but he did not bother to write letter to
the concerned Banks regarding stolen of cheques, which reflects that the
Applicant just lodged complaint to design his ill gain by cheating people as
the said complaint was lodged on 26.04.2013, he issued all the said cheques,
which were dishonoured, after lodging complaint and all the FIRs were lodged
beyond the said date in 2014 and present FIR was lodged in 2015.
So far as the medical ground
of the accused is concerned, a perusal of Extract No.53 dated 21.08.2015
recorded in Register No.44 by Medical Officer, District Prison Malir, Karachi
available as Annexure “E” at page-89 shows that no medical reports were
available with the Applicant regarding his medical history therefore, he was
sent for treatment to Civil Hospital, Karachi. The comments
of Medical officer in such report is reproduced below for ready
reference:-
“As accused has cerebral stroke history and
uncontrolled blood pressure and persist numbness on LT side of body and has no
medical reports with him so far his better treatment he may be sent to Civil
Hospital Karachi. Where he gets Neurological and cardiac
expert opinion and further treatment and lab investigation.
Learned Counsel for the
Applicant has also failed to file any previous lab reports or medical history
showing that the applicant is suffering from any chronic deceased, therefore,
at this stage in my humble opinion the Applicant is not entitled for grant of
bail on medical ground also.
No doubt the case of the applicant/accused not falls within prohibitory
clause of Section 497(1), Cr.P.C. but grant of bail in each case, which does
not falling in prohibitory clause, is not a rule of universal application. Each
case has to be seen through its own facts and circumstances. The grant of bail , no doubt, is discretion granted to a Court, yet the exercise
of it cannot be arbitrary, fanciful or perverse. If any authority is needed the
reference may be made to the case of Shakeel Ahmed versus the State reported in
2009 SCMR 174.
Case law cited by the learned Counsel for the applicant in my humble
opinion are distinguishable from the facts and circumstances of the present
case therefore, the same are not applicable to this case.
For the reasons discussed above, the instant Bail Application was
dismissed by my short order dated 27.10.2015 with direction to the learned
Trial Court to frame the charge within a period of seven (07) days from the
date of receipt of this order and conclude the trial within a period of one
month after framing of charge. In case of failure to conclude the trial within
the above period, the Applicant may file fresh application for bail before 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