IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Bail Application No.1109 of 2013
Mr. Justice Abdul Maalik Gaddi
Ali Bux Qadri... .. Applicant
The State . .Respondent
Date of hearing: 28.01.2014
Date of order: 28.01.2014
Mr. Nasir Ahmed, advocate for the applicant.
Shaikh Liaquat Hussain, Standing Counsel a/w I.O Ms Naila Razzak, FIA AHT Circle, Karachi.
O R D E R
Abdul Maalik Gaddi, J: Applicant/Accused seeks bail in Crime No.89/2013 registered under Section 406/420/109/34 PPC at P.S. FIA AHT Circle, Karachi.
2. Post arrest bail of the applicant/accused was declined by the learned IVth Additional Sessions Judge, Karachi East vide his order dated 02.09.2013, hence this bail application.
3. The FIR depicts that complainant delivered an amount of Rs.1760,000/- to the applicant/accused for arranging Hajj for some prospective pilgrims in the year 2011; neither such prospective pilgrims were sent to Hajj nor the refund was made for which subsequently cheque of Rs.1760,000/- of dated 25.10.2011 was given to the complainant which too was dis-honoured at presentation and subsequently complainant lodged the instant complaint with the FIA for taking legal action and after enquiry instant FIR was lodged.
4. I have heard Mr. Nasir Ahmed, learned counsel for the applicant/accused, Shaikh Liaquat Hussain, Standing Counsel alongwith I.O. Ms Naila Razzak and perused the record.
5. Learned counsel for the applicant/accused has contended that there is more than 20 months delay in lodging of F.I.R. for which no plausible explanation is given either in the FIR or during the investigation. He argued that during such 20 months delay the alleged amount has already been returned to Khurram Baig (complainant) in presence of witnesses who mis-appropriated the same and to shut the claim of such prospective Hajj Pilgrims has lodged the proceedings against the applicant. He added that investigation is completed and accused is no more required for the investigation. He added that section 420 PPC is schedule as bailable offence, section 406/109 PPC requires strong evidence connecting to accused with guilt leaving the case as to warrant further enquiry. He contended that this case is depend on documentary evidence and the evidence is in the custody of the prosecution and there is no chance of tempering with the same. He contended that complainant himself is a broker who has asserted to approach the applicant for arranging of Hajj for prospective pilgrims, as such question of lack of authentication and certification from the Tourism department does not arise. He lastly contended that case of the applicant warrants further enquiry as such he is entitled for concession of bail. He has relied upon case law 2001 MLD 1237, 2005 SCMR 1666, 1996 SCMR 1132, 1995 SCMR 170, 1999 P.Cr.L.J 1648 and 2010 SCMR 1986.
6. Learned Standing Counsel has opposed this bail application on the ground that this applicant/accused is involved in several like cases and would abscond if any concession is given to him. He has further submitted that the offence allegedly committed by applicant/accused is serious and heinous in nature and applicant has committed forgery with the complainant as such according to him Section 489-F PPC was added in challan-sheet.
7. Mainly allegation against applicant/accused is that he has committed fraud with complainant by receiving of Rs.17,60,000/- with understanding to arrange Hajj prospective Pilgrims for the year 2011. Learned counsel for the applicant has stated that he has refunded the said amount to complainant party in presence of the witnesses namely Muhammad Naseem and Muhammad Hanif and in this connection he has filed statement alongwith affidavits of the said witnesses which are taken on record.
8. Perusal of record shows that the alleged incident took place in the month of October 2011, while the same was reported on 29.4.2013 after the delay of more than 20 months for which no explanation has been submitted either in FIR or in police papers, therefore, on this ground false implication of the applicant/accused in this case cannot be ruled-out. Counsel for the applicant/accused has contended that there is no prohibition for grant of bail in respect of offences mentioned above but due to malafide intention subsequently offence under Section 489-F PPC has also been added in order to deprive the applicant/accused for releasing him on bail.
9. I have perused the police file. The case entirely depends upon the documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. No question does arise for tempering the evidence from applicants side. Offences under which the present applicant/accused has prayed for bail either bailable or their punishment do not fall within the prohibitory clause of section 497 Cr.P.C. No exceptional circumstances appearing in this case to with-hold bail of the applicant/accused. I, therefore, while relying upon the case law reported in Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) and Masood Baghpati and another v. The State (1999 P.Cr.L.J 1648), admit the applicant/accused on bail after his furnishing surety in the sum of Rs.15,00,000/- (Rupees Fifteen Lac) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
Bail application is allowed.
J U D G E