2017 PLP 367 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Muhammad Yaqoob Memon has impugned order dated 06.05.2016, passed by the learned Special Judge Anti-Corruption (Provincial), Karachi, whereby his earlier bail application was declined.

2. Necessary facts spelt out from instant FIR are that on receipt of custody of two accused persons namely Muhammad Khan Burhamani HST (BPS-16) and Yaqoob Memon Head Master (BPS-17) of Education Department on the complaint of Khan Muhammad Memon along with case papers of crime No.50/2016, and after obtaining prior approval from competent authority, lodged instant FIR, that applicant Khan Muhammad Memon contacted accused Muhammad Khan Burhamani for appointment of his son and other relatives and after two days, he went to his house at Gulshan-i-Hadeed, where Muhammad Khan, Shafi Muhammad Shar, Yaqoob Memon, Mehboob Burhani, Muhammad Qasim Mangrio, Shahbaz Khan, Shamsher Khan, and Irshad Ali Bhaggan, were already present; they told that they are all partners and providing jobs and ultimately, matter was settled for Rs.4 lacs for lower jobs and Rs.7 lacs for higher posts. On next day, applicant went to the house of Muhammad Khan where all persons were present and he paid them cash of Rs.52,50,000/- and after a week, applicant received 12 appointment orders which were subsequently found fake and forged. Applicant visited Muhammad Khan Burhamani at his house who issued cheque No.2244329, dated 21.3.2016 for Rs.3,00,000/- which was presented on 24.3.2016 in the bank but cheque was bounced due to non-availability of amount, hence applicant lodge instant FIR for committing cheating of Rs.52,50,000/ and fraud and issuance of fake and bogus letters hence instant FIR.

3. Learned counsel for applicant vehemently contended that applicant was apprehended in filed FIR No.50/2016, lodged by applicant Muhammad Khan Memon under same allegations and said FIR was disposed of under the order of concerned Magistrate and instead of releasing applicant, his custody was illegally handed over to ACE; that complainant has lodged instant second FIR for the same crime; that main co-accused Muhammad Khan Birhamani has been granted post arrest bail, while co-accused Shafi Muhammad Shar has been admitted to interim pre-arrest bail by the learned trial Court; that allegations against applicant is mere his presence at the house of main accused Muhammad Khan Birhamani who had also issued cheque in favour of applicant while neither applicant received amount nor provided any appointment letter; that applicant is behind the bars from about 3 months but trial has not yet been commenced.

4. Learned A.P.G considering the material available on record, extended no objection for grant of bail to applicant.

5. Heard learned counsel for the parties and perused the record which emanates that at the first instance, Khan Muhammad Memon lodged FIR 50/2016, under sections 420/470/472/489-F/34, P.P.C. against 8 accused person and out of them applicant and co-accused Muhammad Khan Birhamani were arrested and produced before the Court of learned Judicial Magistrate on 30.3.2016 for grant of further police remand, but learned Magistrate while passing order under section 173, Cr.P.C. directed the jail authority to handover the custody of applicant to Anti-Corruption Establishment but for which not was competent. Perusal of record further reflects that main allegations are attributed to co-accused Muhammad Khan Birhamani who received entire amount of Rs.52,50,000/- in his house and subsequently, he also issued cheque on 21.3.2016, for Rs.3,00,000/- which was bounced due to non-availability of funds. Indeed, apparently there is no direct involvement of applicant regarding receiving of amount for arranging appointment orders. Main co-accused Muhammad Khan Burhamani has already released on post-arrest bail, while co-accused Shafi Muhammad is enlarged on ad-interim pre-arrest bail by the trial court, while case of applicant is on far better footing. In the case of Fazal Ellahi and another v. The State (2004 SCMR 235), the honourable Supreme Court has observed that accused were in custody for last more five months, investigation in the case had been completed and they are no more required by the Investigating Agency and Challan also submitted in Court, thus keeping accused in custody would serve no purpose, and accused were admitted to bail.

6. Considering the above facts and circumstances, applicant has made out a case for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is admitted to post arrest bail on furnishing solvent surety in the sum of Rs.50,000/= (Fifty thousand) and P.R. bond in the like amount to the satisfaction of learned trial Court. The observations made supra are tentative in nature. Learned trial Court shall decide the case strictly on merits. WA/M-175/Sindh Bail granted.