IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-723 of 2019

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

1.   For orders on O/objection at flag-A.

2.   For the hearing of bail application.

 

 

 

 

Date of hearing              27.01.2020.

 

 

Mr. Ghulam Shabir Dayo Advocate for the applicant.

Mr. Yasir Arfat Mahar Advocate for complainant.

Mr. Abdul Rehman Kolachi DPG.

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ZULFIQAR ALI SANGI, J;-              Through instant bail application, the applicant/accused Saeed Abbas S/o Liaqat Hussain seeks post-arrest bail in Crime No.159/2019 registered at Police Station, ‘A’ Section Sukkur for offence punishable under Sections 489-F, 506(2), 420 PPC.

 

2.                Brief facts of the prosecution case are that complainant Waseem Ahmed lodged FIR on 22.10.2019 at 1330 hours stating therein that applicant Saeed Abbas has purchased 750 sacks of wheat amounting to Rs.2400000/- from him and undertook to pay the amount within a week and went away/-. On 23.06.2019 applicant Saeed Abbas came at Lab-e-Mehran Hotel Sukkur where he called complainant, it was about 1700 hours. He met him along with two witnesses  Waqar Ali S/o Fakir Mohammad Pathan and Munir Ahmed S/o Shafi Mohammad Qureshi R/o Barrage Colony Sukkur and handed over him one Cheque No.11004269 amounting to Rs.2400000/- for 24.07.2019 of Bank Al-Habib Branch Nawabshah. It is alleged that the complainant deposited said cheque in his account in HBL  Gharibabad Branch but said cheque was dishonored on 16.10.2019, such a memo was issued. On 05.10.2019 the conversation was made with accused who issued threats of dire consequences. Hence, he lodged FIR.

 

3.                Learned Counsel for applicant contends that the applicant has falsely been involved in this case by the complainant with malafide intention and ulterior motives. He submits that instant FIR was registered with malafide intention as the original dispute of applicant is with one Abdul Ghafoor Shah to whom the applicant gave blank cheques for security and now he is using his friends by registering several FIRs at different places. He further contends that another FIR bearing Crime No.338/2019 u/s 504, 506-B, 489-F PPC Police Station, Balouch Colony, Karachi was registered and the applicant has been granted bail by the learned Add: Session Judge IV, South, Karachi and in other similar nature cases he has been granted bail by learned Sessions Judges. The main contention of learned Counsel for the applicant is that the punishment provided for the offence as alleged is only up to three years which does not fall within the prohibitory clause of Section 497 Cr.P.C. In the circumstances, he states that the case of the applicant requires further inquiry and the applicant is entitled to grant of bail. He relied upon the case of Mian Mohammad Akram v. The State and others (2014 SCMR 1369).   

 

4.                Learned Deputy prosecutor General appearing for the State assisted by learned Counsel for complainant opposed the grant of bail on the ground that applicant has issued a Cheque amounting to Rs.2400000/- and that cheque on presentation was dishonored such memo has been issued by the bank authorities; that case is based on documentary evidence and no malafide is on the part of complainant has been pointed out by the applicant. He further contended that this is a financial murder of complainant wherein a huge amount of the complainant has been embezzled by way of fraud by the applicant. By stating so they requested for dismissal of this bail application.                   

 

5.                Heard arguments of learned Counsel for the parties and perused the record with their able assistance.

 

6.       Learned Counsel for applicant placed on record one agreement available on page-63 with Abdul Ghafoor Shah S/o Allah Bux Shah in which some detail of Cheques is mentioned including the present cheque. The said Abdul Gafoor shah has also lodged FIR against the applicant. Admittedly, in other cases, the applicant has been granted bail by the Trial Courts.

 

7.       It is surprising that during the entire investigation, I.O had failed to collect any evidence which shows that the complainant or the applicant were dealing with the business of sale and purchase of wheat and learned Counsel for complainant so also learned DPG have also failed to point out such evidence on record. In absence of any business transaction between the parties, it cannot be said that the cheque was given dishonestly or it was given to fulfillment of any obligation or re-payment of any loan to attract the provision of section 489-F PPC. The Section 489-F reads as under;

 

“Dishonestly issuing a cheque- Whoever dishonestly issues a cheque towards repayment of a loan for fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.”

 

8.                From the contents of FIR and material placed on record by learned Counsel for the applicant so also material collected during investigation it is clear that several FIRs were registered against the applicant on the basis of those cheques which are mentioned in the agreement. All these circumstances make out a case of further inquiry and it is for the trial court to decide the entire case after recording the evidence. In the case of Mian Mohammad Akram v. The State and others (Supra) the Honourable Supreme Court has held as under;

 

“It has straightaway been observed by us that according to the FIR the amount in issue had been given by the complainant to the petitioner by way of entrustment and, thus, the cheque statedly issued by the petitioner in favour of the complainant was prima facie not issued towards repayment of any loan or fulfillment of an obligation to attract the provisions of Section 489-F PPC. We have repeatedly asked the complainant to confirm as to whether had given the amount is issued to the petitioner by way of entrustment or as a loan and every time the complainant has insisted that he had handed over the relevant amount to the petitioner only by way of a trust. In these peculiar circumstances of this case, the question as to whether the provisions of section 489-F PPC stand attracted to the allegations leveled by the complainant against the petitioner or not is a question that requires further probe at this stage. The investigation officer present before the Court has categorically stated that during the investigation no evidence has become available on the record regarding any obligation on the part of the petitioner to repay any amount to the complainant. The investigation officer has confirmed the fact that the petitioner has already joined the investigation. In these circumstances insistence by the local police upon the arrest of the petitioner has prima facie appeared to us to be smacking of bad faith.”

                  

9.                It is a well-settled principle of law that at the stage of bail deeper appreciation of evidence is not permissible but the material is to be assessed tentatively. From the tentative assessment of the material available on record, I am of the considered view that the applicant has been able to make out a case for grant of bail. Accordingly, the instant bail application is allowed. The applicant/accused Saeed Abbas is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees   Five Lacs) and PR bond in the like amount to the satisfaction of the learned trial Court.

 

 

         Bail application stands disposed of.

 

                                                          J U D G E