2022 PLP 115 (YLRN)

ABDUL MAALIK GADDI, J.

By this common order, I intend to dispose of the above captioned bail applications, as they arise out of Order dated 19.8.2019 passed by the learned II-Additional District and Sessions Judge, Karachi (East), rejecting the bail applications of the applicant, who is said to be accused in the above said bail applications.

2. Through these bail applications, applicant/accused seeks bail in Crimes Nos.521/2018, 523/2018, 525/2018, 526/2018, 03/2019, 53/2019 and 66/2019 at Police Station Aziz Bhatti, Karachi under Sections 420/468/471/34 of P.P.C.

3. The allegation against the applicant/ accused is that she allegedly committed fraud and cheating with the complainant party with the help of other accused in the above said FIRs, thereby committed non-bailable and cognizable offence.

4. It is stated by the applicant that dispute between her and complainants is of civil nature, she did not make any commitment with complainants for handing over the portion within time but Sindh Building Control Authority has demolished her project. She further submits that she is not a cheater and cases against her are false and all the offences in which she has been booked either bailable or their punishment does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, she prayed that interim order already extended in her favour may be confirmed.

5. Learned D.P.G. assisted by learned counsel for complainant opposed these bail applications on the ground that the applicant/ accused received the money from complainant, thereby prepared forged documents for the purpose of cheating as such she is belongs to the gang of cheaters, she deprived many innocent persons from their valuable rights by showing the fake documents, hence she does not deserve any leniency in terms of extra ordinary concession of bail. He argued that applicant is nominated in FIR with specific role, hence, her bail applications may be rejected.

6. I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.

7. It is an admitted position that cases have been challaned. This applicant/ accused is no more required for investigation. Whole case of the prosecution is based upon the documentary evidence, which in fact is in possession of the prosecution, therefore, no question does arise for tampering the same at the hands of the applicant. The allegation against the applicant/ accused is that she has committed cheating but this fact has been denied by the applicant. Therefore, this is the question of fact which required evidence at the time of trial whether the incident has taken place in a fashion as stated in FIR or otherwise.

8. It appears from the record that in these matters, the report of alleged cheating has been made by the complainant to the police station much after the inordinate delay. During the course of arguments, I have specifically asked the question from learned counsel for complainant and A.P.G. to explain the delay in lodging the FIR. They have no satisfactory answer with them. It is noted that all sections applied in these cases either bailable or their punishment does not fall within the prohibitory clause of section 497, Cr.P.C. In such circumstances, Hon'ble Superior Courts has observed in number of cases that grant of bail in such situation is a rule and refusal an exception. No exceptional ground exists in these cases to withhold the bail of the applicant. In this regard, I am supported with the case of Muhammad v. Tanveer v. The State and another reported in PLD 2017 SC

733. Applicant by appearance is an old age lady.

9. It is argued by the learned counsel for complainant that the applicant/ accused is involved in other criminal cases of similar nature, therefore, she does not deserve the concession of bail. I am not impressed with the arguments of learned counsel for complainant for the reasons that in these matters, admittedly, applicant has not been convicted in any other criminal case, therefore, applicant cannot be refused bail merely on the ground that certain other criminal cases have been registered against her. During the course of arguments, I have also specifically asked the question from learned A.P.G. to point out whether applicant/ accused has been convicted in any other criminal case. He replied in negative. In this connection, I am supported with cases of Jafar alias Jafari v. The State and reported in 2012 SCMR 606 and Shah Nawaz alias Chullu v. The State and another reported in 2013 PCr.LJ 1782. In the case-law 2012 SCMR 606, it has been observed as under: "

8. We have heard the learned counsel for the parties and have also gone through the contents of the compromise. As at present no sufficient evidence is available on record to conclude that the accused/ appellant is habitual offender, coupled with the fact that although another FIR referred to by the learned Additional P.G. has been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/ established that he has been convicted in the said FIR, and the said conviction has been finally maintained by the superior Courts. Therefore, we have decided to dispose of this case in terms of compromise."

10. As observed above, the cases have been challaned and present applicant/accused is no more required for investigation. Applicant is a lady of advanced age and the punishment of the offences under which present applicant/ accused has been booked also does not fall within the prohibitory clause of section 497, Cr.P.C. Under these circumstances, I have come to the conclusion that applicant has made out cases for grant/ confirmation of bail. I, accordingly, confirm the interim order dated 13.9.2019 in favour of the applicant on same terms and conditions with direction to applicant to appear before the trial Court to face the trial.

11. Needless to mention here that the observation, if any, made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if the applicant/ accused misuses the bail before the trial Court, then trial Court would be competent to cancel the bail of the applicant without making any reference to this Court.

12. Since it is a case of alleged cheating with the complainant party, therefore, trial Court is directed to proceed the matters expeditiously and decide the same, preferably, within the period of 03 months after receipt of this order. No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II.

13. In view of the above, these bail applications are allowed in above terms. ADN/A-26/Sindh Applications allowed.