IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail
Application No.360 of 2025
|
DATE |
ORDER WITH
SIGNATUREs OF JUDGEs |
For
hearing of bail application
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12.03.2025
Mr. Muhammad Farooq,
advocate for applicant
Ms. Seema Zaidi, Additional Prosecutor General Sindh
Syed Dilshad
Hussain Shah, advocate for complainant
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SHAMSUDDIN ABBASI,
J.—Applicant/accused Kamil Shah son of Muhammad Afzal
seeks pre-arrest bail in FIR No.147/2024,
registered at P.S. Sachal, District Malir Karachi for
offence under section 489-F, PPC, after rejection of his bail plea by learned Additional
Sessions Judge-III, Malir Karachi vide order dated 03.02.2025.
2. Brief
facts of the case are that applicant has issued three cheques
of Rs.2,000,000/- each (total
Rs.6,000,000/-) to the complainant on account of purchase of iron bars (Sarya), which, on presentation to concerned Bank,
were dishonoured for the reasons that the subject account
was dormant, hence the subject FIR.
3. Learned
counsel for applicant submits that alleged cheques
were issued in the year 2022 and FIR was lodged on 17.01.2024, after a delay of
about two years, without any plausible explanation; that there is no details of
sale and purchase of iron bars (Sarya); that alleged offence does not fall within the ambit
of prohibitory clause of section 497, Cr.PC; that
applicant is not a willful absconder but when his CNIC was blocked on the
direction of learned trial Court, he came to know about registration of present
case and he immediately approached the trial Court for pre-arrest bail; that he has given cheques as guarantee and this issue can be resolved after
recording evidence. He relied upon the case of ALI ANWAR PARACHA versus The
STATE (2024 SCMR 1596).
4. On the
other hand, learned Additional Prosecutor General Sindh, assisted by counsel
for complainant, has opposed the bail to the applicant on the ground that applicant
is nominated in FIR; that in order to cheat the complainant he issued three cheques of Rs.2,000,000/- each in
his favour, which were dishonoured
on presentation for the reason that the subject account was dormant. She further
submits that applicant kept the complainant on false hopes for making payment,
therefore, he did not register the FIR and after his refusal for making payment
he lodged the FIR; that he did not join the investigation, therefore, IO
submitted challan under Section 512, Cr.PC and during proceedings his CNIC was blocked,
thereafter, he approached Court of Sessions concerned by way of filing
pre-arrest bail, which was declined. Learned Additional Prosecutor General
Sindh pointed out that applicant is also involved in another case being FIR
No.1472//2024, registered at P.S. Sachal for offence
under sections 420, 506-B, 34, PPC.
5. Heard
learned counsel for applicant, Additional Prosecutor General Sindh, counsel for
complainant and perused the material available on record.
6. Admittedly,
three cheques issued by the complainant were
presented on 25.05.2022 and the same were dishonoured
on presentation for the reason that the subject account was dormant. Per learned
counsel for complainant, applicant kept the complainant on false hopes for
making payment, therefore, there is delay in lodging the FIR. Usually, in money
transaction cases, delay occurs in lodging of FIR on the hope of settlement
between the parties. However, delay in such like cases is not fatal to the
prosecution case. Applicant did not join investigation, therefore, IO submitted
challan under section 512, Cr.PC
and CNIC of applicant was blocked, therefore, he approached learned Court of
Sessions concerned for pre-arrest bail, which was declined by learned Additional
Sessions Judge-III, Malir, Karachi.
Learned counsel for applicant mainly contended that applicant is suffering from
ailment but no such record has been placed on record. It has also come on
record that applicant is involved in another criminal case being FIR
No.1472//2024, registered at P.S. Sachal for offence
under sections 420, 506-B, 34, PPC. The requirement for grant of pre-arrest
bail is settled by the apex Court where applicant has to prove his case on the
point of mala fide for his false implication in the case, which he failed to. No
case for grant of extra-ordinary concession of pre-arrest bail has been made out, which
is meant to protect innocent persons from humiliation and arrest. Reliance is placed on the cases of Mukhtar Ahmed versus the State (2016 SCMR 2064) and Gulshan Ali Solangi and Others
versus the State through P.G. Sindh (2020 SCMR 2064).
7. Moreover,
the apex Court time and again has held that the mere fact that an offence does
not fall within the prohibitory clause of section 497(1), Cr.PC
would not mean that such an offence had become bailable.
The discretion still remains with the competent Court to consider whether a
person accused of such an offence does or does not deserve the grant of bail in
accordance with the established norms governing the exercise of such a power.
Reliance is placed on the cases of Afzaal Ahmed vs.
The State (2003 SCMR 573). Each case has to be
seen on its own facts and circumstances and concession of grant of bail cannot
be exercised in a way which can be termed as arbitrary, fanciful or perverse. Interim
pre-arrest bail granted to applicant/accused by this Court vide order dated 10.02.2025
is hereby recalled and the instant criminal bail application is dismissed. However, applicant/accused
would be at liberty to file post-arrest bail application before the trial
Court, which shall be decided by the trial Court concerned on its own merits,
without being prejudiced by the observations made herein, which are tentative
in nature.
8. Instant
criminal bail application is disposed of in the above terms.
J
U D G E
Gulsher/PS