IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
Crl. Bail Appln. No. S- 489 of 2023.
AND
Crl. Transfer Appln. No. S- 57 of 2023.
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Date of hearing |
Order with signature of Judge |
Date of hearing: 15.04.2024.
Date of order: 15.04.2024.
Date of reasons: 18.04.2024.
Mr. Zulfiqar Ali Langah, Advocate for applicant in Crl. Bail Appln. No. S- 489 of 2023 and for respondent No.1 in Crl. Transfer Appln. No. S- 57 of 2023.
Mr. Abdul Rehman Mughal, Advocate for complainant in Bail Appln. No. S- 489 of 2023 and for applicant in Crl. Transfer Appln. No. S- 57 of 2023.
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
ORDER
Muhammad Saleem Jessar, J: Since, captioned two applications are outcome of same case/ crime i.e. F.I.R No. 62 of 2023 registered at P.S New Foujdari, Shikarpur, for offense punishable under Section 489-F P.P.C, as such these are disposed of through this common order.
2. Crl. Bail Appln. No. S- 489 of 2023 has been filed on behalf of applicant Fozia Naz under Section 498-A Cr.P.C., seeking pre-arrest bail.
3. Whereas, Crl. Transfer Appln. No. S- 57 of 2023 has been filed on behalf of Aga Imran Hyder (complainant) under Section 526 Cr.P.C, seeking transfer of Criminal Case No. 135 of 2023 re; The State v. Fozia Naz, emanating from aforesaid F.I.R., from the Court of Judicial Magistrate, Khanpur, to any other Court.
4. Heard learned counsel for respective parties and perused the material available on the record.
5. Firstly, Crl. Bail Appln. No. S- 489 of 2023 is taken up. After scanning the available record in the light of arguments advanced by the respective parties, I have observed as under: -
(a) The allegations against applicant Fozia Nazi is that of issuing two cheques worth Rs.50,00,000/- and Rs.30,00,000/- respectively, to the complainant in respect of return of loan amount, which on presentation were dishonored by the bank authorities.
(b) Admittedly, there is delay of more than a year in registration of the F.I.R without furnishing plausible explanation. As per well-settled law, the delay in reporting the matter to police is always considered to be fatal for the prosecution, because the delay is falling within the ambit of deliberation and afterthought.
(c) There is nothing on record to show that the complainant has either filed any suit for recovery or any civil proceeding to enforce his title and to establish his bonafide. No material is available on the record to show that the transaction as claimed by the complainant with regard to alleged transaction had actually taken place.
(d) Though, the offence is non-bailable, but it does not fall within the prohibitory clause of section 497 Cr.P.C.
(e) That, case is being tried by the Magistrate; as such sentence for more than three years could not be visualized.
(f) Besides, the applicant has already joined the trial and attending the trial Court and has not misused the concession of interim bail.
(g) The investigation of this case has been finalized. Per progress report furnished by learned trial Court the “charge” has been framed in the case; some of witnesses have been examined and case is fixed for recording evidence of rest of witnesses, as such no fruitful purpose would be achieved, if the interim bail is recalled and applicant is remanded to jail.
(h) The, applicant being woman also deserves concession of bail as per provisions envisaged in Section 497 of the Code of Criminal Procedure, 1898.
6. As a sequel to the above observation, I have found the case against the applicant/ accused Fozia Naz, a case for further probe. Consequently, ad-interim pre arrest already granted to her, vide Order dated 30.08.2023 was confirmed on same terms and conditions through short order dated 15.4.2024, and these are the reasons for short order.
7. Now, Crl. Transfer Appln. No. S- 57 of 2023 is taken up. This application has been filed by complainant Aga Imran Hyder for transfer of the case from the Court of learned Judicial Magistrate Khanpur to any other Court on the grounds that due to harsh behavior of Presiding Officer of the trial Court he has lost faith in him of getting fair trial and justice. Contrary to this, the learned trail Judge in his comments has denied the allegations leveled by the applicant/ complainant. He has however extended no objection to transfer of the case.
8. A self-procured mistrust, suspicion and apprehension of applicant/ complainant is no ground for transfer of case. It is well settled law, that cases cannot be transferred as a matter of routine at the wish of any of the parties without any solid ground. It is however reflected from the record that both the parties are originally/ permanently resident of local limits of Shikarpur town, as such transfer of the case from the file of Judicial Magistrate Khanpur to Shikarpur will not cause any inconvenience for either of the parties; rather it would be more convenient and suitable for them, if the case is transferred to any Court stationed in Shikarpur. Accordingly, without dilating upon grounds insisted by complainant for transfer of the case, the application in hands was allowed vide short order dated 15.4.2024, whereby aforesaid criminal case was directed to be withdrawn from the Court of Judicial Magistrate Khanpur; to be made over to any other Judicial Magistrate stationed at Shikarpur by the learned Sessions Judge, Shikarpur, for its disposal in accordance with law, and these are reasons for short order.
9. Both these applications are disposed of in above terms. However, it is needless to mention that observations made in this order are tentative in nature and shall not prejudice the case of either party at trial.
Judge
Ansari