2021 PLP 997 (MLD)

FAHIM AHMED SIDDIQUI, J.

The applicant is seeking pre-arrest bail in a case registered against him at Police Station Samanabad through F.I.R. No. 69/2019 under Section 489-F, P.P.C. The applicant was successful in getting pre-arrest bail vide Order dated 08-07-2018 after rejection of similar plea from the Additional Sessions Judge-II; Karachi Central vide order dated 06-07- 2019.

2. Today, the learned counsel for the applicant has filed statement along with certain documents-viz. C-class approval order dated 23-07-2019, charge-sheet No. 40/2019 dated 23-05-2019, copy of cheque No.10881922 dated 15-08-2018 and of Cheque No. 10881921 dated 10-06-2018, which is taken on record and copies thereof supplied the learned counsel for the complainant and learned AGP.

3. The learned advocates for the applicant and complainant as well as learned APG argued the matter at length. I have heard their submissions intently and perused the record and citations carefully. From whatever argued and placed before me, I have observed as under: (a) The allegations against the applicant are that he has given two cheques amounting to Rs.10,00,000/- and 15,00,000/- to the complainant on behalf of his younger brother from whom complainant was demanding Rs.33,00,000/- in connection with some property dealing. The cheque amounting to Rs.10,00,000/- was encashed but the other cheque could not be encashed; hence FIR was lodged. (b) The complainant also alleged that the brother of the applicant namely Syed Iftikhar Haider, who is a state agent, has deceitfully taken Rs.33,00,000/- from him to pay to the owner of the property, which was purchased by the complainant through him but he did not pay the same to the owner of the property. However, penal sections of cheating and fraud are not mentioned in the F.I.R. (c) As per allegations, the cheques number mentioned in the F.I.R. and according to F.I.R. cheque No. 10881921 amounting to Rs.10,00,000/- which was encashed while cheque No. 10940291 amounting to Rs. 15,00,000/- was dishonoured. (d) It has come on record that previously applicant issued two cheques being cheque No. 10881921 for an amount of Rs.10,00,000/- and cheque No. 10881922 for an amount of Rs.15,00,000/-. The first cheque was encashed and for the second cheque, an earlier F.I.R. No. 110/2019 at PS Gulberg under Section 489-F was lodged. (e) It is noteworthy that the learned counsel for the applicant claims that the cheque in question was issued by the applicant at PS Gulberg under the pressure of police when he was detained by the police in connection of earlier F.I.R., when the SHO of PS Gulberg noticed that the F.I.R. No. 110/2019 was wrongly lodged at his PS for want of territorial jurisdiction. (f) It is also notable that due to a mistake on account of territorial jurisdiction, the earlier F.I.R. i.e. F.I.R. No. 110/2019 was cancelled. In this respect, the order dated 23- 07-2019 of the learned Judicial Magistrate-X; Karachi Central speaks volumes regarding the case. I would like to reproduce the said order through which F.I.R. No. 110/2019 was cancelled; "ASI Abid Raza of PS Gulberg submitted instant final report in C class duly approved by the concerned SSP on the ground that place of incident i.e. Bank Al-Habib Ltd., Water Pump Branch is situated at Block-18, which comes in the jurisdiction of PS Samanabad but due to mistake F.I.R. was lodged at PS Gulberg, the learned ADPP for the State also consented the disposal of the instant matter under "C" class. Therefore, final report is hereby approved in C class." (g) From the above order, the plea of the applicant that the instant cheque was issued under duress and pressure of police when he was in custody in respect of the F.I.R., which was subsequently cancelled on account of a mistake of police. (h) The cheque which was encashed and the cheque for which F.I.R. was cancelled are successive in cheque numbers, as such this fact also creates doubt and fortifies the plea of duress and police pressure regarding issuance of the cheque of present F.I.R. (i) Another aspect is considerable, if the F.I.R. of earlier cheque was cancelled then why not the same cheque was used for lodging of the present F.I.R? The reason is obvious the complainant was anxious to put the applicant behind the bar; so that he did not wait for cancellation of F.I.R. No. 110/2019. In such a situation voluntary issuance and presenting of cheque is questionable. (j) Under these circumstances, the plea of malice and ulterior motive raised on behalf of the applicant bear the weight besides the case against the applicant requires further probe.

4. The upshot of the above discussion is that a case of pre-arrest bail is made out in favour of the applicant, as such the interim order dated 08-07-2019 is confirmed on the same terms and conditions. The applicant is directed to attend the trial Court and/or join investigation if required by the investigation officer.

5. It is not out of place to mention that if the applicant remains absent with intention to avoid trial and prefers to become absconder from the trial Court or fugitive to law; then the trial Court is fully empowered to take every action against the applicant including cancellation of his bail and initiating proceedings against his surety without making a reference to this Court. Since the surety is furnished before this Court; therefore, in case of any adverse order by the trial Court, an intimation from the trial Court will be sufficed for further proceedings by the Nazir of this Court regarding fortification of the surety amount in favour of the State.

6. Needless to say that the above observations are tentative in nature, as such the learned trial Court is supposed to proceed with the trial purely on merit without diverging due to these observations. ADN/W-10/Sindh Pre-arrest bail confirmed.