ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-512 of 2021

 

Date

               Order with signature of Judge

           

Applicant:                                  Muhammad Nawaz, through

                                                  Mr. Abdul Qadir Shaikh, Advocate

 

Complainant:                             Muhammad Afzal, through

                                                  Syed Muhammad Ali Shah, Advocate

 

State:                                         Through Mr.Shafi Muhammad Mahar,

                                                  Deputy Prosecutor General

 

Date of hearing:                         06.12.2021

 

Dated of order:                           06.12.2021

                                                 

O R D E R

 

Zulfiqar Ali Sangi, J:   Through this bail application, applicant/ accused Muhammad Nawaz son of Ali Nawaz Channa, seeks his pre-arrest bail in FIR No.17/2021, registered at Police Station Newpind Sukkur, u/s 489-F, 506/2 and 504 PPC. Earlier his same plea was declined by the learned II-Additional Sessions Judge, Sukkur vide order dated 13.08.2021.   

2.              It is alleged that complainant and applicant were jointly doing the business of cattle-pond and in this regard an amount of Rs.70,00,000/- of the complainant was outstanding against the applicant/accused for which the applicant/accused allegedly issued him a cheque which on presentation in the concerned bank was dishonoured.

3.              Learned counsel for the applicant has contended that the applicant is innocent and has falsely been implicated by complainant with malafide intention. He also contended that there is inordinate delay of one month and 17 days in registration of FIR which has not been properly explained by the complainant. He further contended that actually there is civil disputed between the parties but complainant dishonestly wants to convert the civil dispute into criminal proceedings. He further contended that the offence does not fall within the ambit of prohibitory clause of section 497 Cr.P.C, therefore, he prayed for confirmation of interim pre-arrest bail already granted to the applicant. Learned counsel for the applicant in support of his contentions placed reliance on the case of Zaheer Abbas vs. the State (SBLR 2021 Sindh 132) and an unreported order of this court passed in Cr.B.A.No.S-373/2021 ‘Abdul Rasheed v. The State.’

4.              Learned counsel for the complainant has opposed the confirmation of interim pre-arrest bail contending that the applicant is nominated in the FIR who has issued cheque of heavy amount to the complainant which was dishonoured, hence the applicant is not entitled for concession of pre-arrest bail. He in support of his contention placed reliance on the case of Syed Zahoor-ul-Hassan Shah vs. the State (2021 P.Cr.L.J 886), Mst. Doris Thomas vs. the State (2011 MLD 793) and an unreported order of this court passed in Cr.B.A.No.S-34 of 2020 ‘Kareem Bux vs. the State’.

5.              Learned DPG  opposed the confirmation of bail on the ground that there is no denial of the applicant that he has not issued the cheque; that the cheque was given by applicant for re-payment of the amount of complainant, which on presentation was dishonoured, therefore, the applicant is not entitled for the relief claimed in this application.

 

6.              I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

 

7.              From perusal of record it appears that there is civil dispute between the parties. Copy of an agreement available at page 33 of the file, reflects that this agreement was executed between the complainant and brother of the applicant regarding sale of agricultural land by complainant and the subject cheque is part of this agreement. Copy of FC Suit No.53/2021, available at page 51 of the file also shows that civil dispute over said agricultural land is going on between the parties. It is also pertinent to mention here that in the FIR complainant has stated that he and applicant were doing joint business of cattle-pond but in the application u/s 22-A & B Cr.P.C, available at page 39 of this file, filed for registration of present FIR, complainant has not mentioned the nature of business between him and the applicant. The contention of learned counsel gets support from the above circumstances that the complainant intends to convert the civil dispute into criminal proceedings, which makes the case of applicant one of further enquiry. Besides, the offence does not fall within prohibitory clause of section 497 Cr.P.C and grant of bail in these cases is a rule and refusal is an exception, however, strong reasons for refusal are required. Reliance is placed on the case of Tariq Bashir v. The State (PLD 1995 SC 34) , Muhammad Tanveer V. The State and another (PLD 2017 SC 733) and Sheikh Abdul Raheem v. The State and another (2021 SCMR 822). The case law referred by learned counsel for the applicant is fully applicable to the case in hand while the case law referred by learned counsel for the complainant is not applicable to the present case as the facts and circumstances of the same are distinguishable to this case.

8.              The deeper appreciation of evidence is not permissible at the bail stage and the same is to be decided tentatively. From the tentative assessment of material available on record the applicant has made out his case for confirmation of pre-arrest bail. Accordingly, instant bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicant vide order dated 16.08.2021, is hereby confirmed on same terms and conditions.

9.              Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

 

 

                                                                             JUDGE

 

Suleman Khan/PA