IN THE HIGH COURT
OF SINDH,BENCH AT SUKKUR
CriminalBail
Application No.S-740 of 2019
Applicant/accused: Nadeem Ahmed S/o Atta Muhammad Khaskheli
Through Mr. Abdul Ghani Abro, Advocate
Complainant : Tahseen
S/o Yaseen Memon
Through
Mr. Nusrat Ali Shar Baloch, Advocate
The State : Through Mr. Shafi Muhammad Mahar, DPG
Date of Hearing : 14.02.2020
Date of announcement: 14.02.2020
O R
D E R
ZULFIQAR ALI SANGI,
J.-Through
instant application, applicant/accused named above seeks pre-arrest bail in FIR
No.240/2019, registered at Police Station B-Section, Khairpur for offences
punishable under Sections 489-F & 506/2 CrPC. Applicant/accused approached
for bail before arrest to the learned Additional Sessions Judge-IV, Khairpur,
where he was granted interim pre-arrest bail, however, later on it was declined and order for interim-pre-arrest
bail was recalled, vide order dated 21.12.2019, hence applicant/accused
approached this court for bail before arrest.
2. Briefly
the facts of prosecution case are that on 05.12.2019 at 1400 hours, complainant
Tahseen Memon lodged FIR at Police Station B-Section Khairpur, stating therein as
under:-
“Complaint is that I am
doing the business of houses, I had friendship with Nadeem Ahmed son ofAtta
Muhammad Khaskheli, who was also doing the business of houses. On 05.06.2018, I
along with my brother Muhammad Asif and friend Abdul Basit son of Waheedullah
Phulpot were available at Hotel in Faizabad Colony near Luqman Phatak,
meanwhile Nadeem Ahmed son of Atta Muhammad Khaskheli and his uncle Badaruddin
Khaskheli came there, on coming they said that they have done the transaction
of house, therefore they need Rs.14,50,000/- for some days, then they kept the
Cheque 51301770 of dated 01.08.2019 of 14,50,000/- of NBP main branch Khaipur
as surety, then I given the Rs.14,50,000/- in the presence of witnesses. On
01.08.2019, I appeared in National Bank of Pakistan main branch Khairpur for
encash the Cheque but same was not encase, then I narrated such facts to Nadeem
Ahmed but he kept me on hollow hopes, then on 04.09.2019 I got Memon on cheque,
then I along with witnesses approached to Badaruddin Khaskheli at Ice Factory
Luqman, where we demanded above amount from him, meanwhile he took pistol and
issued threats to us while said you should go from here otherwise we will
murder you, due to fear of weapons I returned back from there, thereafter, I
filed application before competent Court of law, then got order of FIR,
thereafter, I appeared at PS and lodged the above FIR.”
3. Mr. Abdul Ghani Abro, learned
counsel for applicant/accused contended
that admittedly a cheque was issued by applicant/accused to complainant. He
further submits that a private Faisla was held in between parties on 05.09.2019
and after that order was passed by the learned Court of Additional Sessions
Judge-II/Justice of Peace, Khairpur for registration of FIR, where-after some
amount has been given to the complainant. He also contended that punishment
provided for offence under Section 489-F PPC is upto three years, which even
does not fall within the prohibitory clause of Section 497 CrPC. The main
contention of learned counsel for applicant/accused is that FIR was registered
with delay and that has also not been explained. According to applicant/accused
no amount is outstanding against him. Learned counsel further submitted that
charge has been framed by the learned trial Court and the case is now fixed for
evidence, thus, in these circumstances, pre-arrest bail granted earlier, may be
confirmed. He relied upon 2019 PCrLJ 295 and 2014 SCMR 1369.
4. Mr.
Nusrat Ali Shar Baloch, learned counsel for complainant submitted that
no any private Faisla was held in between the parties, all the documents
produced by the applicant/accused are fake and are not even signed by parties.
He submits that delay has been explained in FIR as the FIR was registered after
obtaining orders from the honourable Court. He relied upon 2014 YLR 372.
5. Mr. Shafi Muhammad Mahar,
learned Deputy Prosecutor General contends that co-accused Badaruddin Khaskheli
has been released by Investigating Officer as during investigation, he was
found innocent. He further contends that delay has been explained properly and
after obtaining orders from learned Justice of Peace, FIR was registered. He in
support of his contentions has relied upon 2019 SCMR 1129.
6. I
have heard the learned counsel for the parties and perused the material
available on record. From the contents of FIR, it appears that complainant gave
an amount of Rs.14,50,000/- in cash but during investigation, he has not
submitted any proof that wherefrom he got such amount and gave to
applicant/accused. Complainant has failed to show any National Tax Number
regarding his business, which he has even admitted in his FIR and before the
Court. The copy of Faisla has been submitted by learned counsel for applicant/accused
along with his application, which suggests that some monitor transaction in
between the parties but such is to be decided by trial Court after recording
the evidence. The offence for which, the applicant/accused is booked is
punishable upto three years, same does not fall within the prohibitory clause
of Section 497/2 CrPC. It is well settled principal of law that in cases
covering under Section 497/2 CrPC, the bail is right of applicant/accused and
refusal is exception.
7. For
the above stated reasons and the punishment provided for offence under Section
489-F PPC,the bail application is allowed and interim pre-arrest bail already
granted toapplicant/accused vide order dated 31.12.2019 is hereby confirmed.
Since the charge has already been framed by learned trial Court, thus, learned
trial Court is directed to conclude the case within period of three months
after receiving of this order.
8. The
titled Cr. Bail Application stands disposed in the above terms.
____________
JUDGE
G.M/Steno