2016 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Applicant/accused Arif Iqbal son of Muhammad Younus seeks bail in FIR No.01/2015, registered against accused at P.S. Mauripui, District South, Karachi, for offences under sections 489-F, 420, 34, P.P.C. Brief facts of the prosecution case as disclosed in the FIR are that applicant/accused was employee of White Pearl Rice Mills Limited in the year of 2012 as Sales Manager and his duty was to sell oil, ghee and rice of the company. He had hired two persons/accused, namely, Kashif Ali Khan and Muhammad Afaq, who used to supply company's goods to other dealers. It is further alleged in the FIR that accused established an agency in the name of Al-Rehman Traders and used to deposit cheques of Al- Rehman Traders in the accounts of the Company. Out of same, two cheques of Silk Bank bearing Nos.7515881 of Rs.1,700,000/- dated 19.04.2013 and 7515882 of Rs.1,875,000/- dated 02.05.2013 were deposited in the company's account, maintained with Bank Al-Fallah, which were dishonoured and later on it was found that applicant/accused Arif Iqbal along with his accomplices fraudulently obtained goods from the company in the name of Al-Rehman Traders. Thereafter, FIR was lodged by Muhammad Safdar Baig, Admn. Officer of the company on 01.01.2015, at P.S. Mauripur vide FIR No.01/2015 under sections 489-F, 420, 34, P.P.C. During investigation, applicant/accused was arrested on 06.02.2014. Co-accused Kashif Ali Khan was arrested on the same day. After usual investigation, challan was submitted against accused under sections 489-F, 420, 408, 34, P.P.C. Bail application was moved on behalf of applicant/accused Arif Iqbal before IX Judicial Magistrate, Karachi West, the same was rejected vide orders dated 03.03.2015. Thereafter, applicant/accused approached learned II Additional Sessions Judge, Karachi West for grant of bail, the same was refused vide orders dated 09.05.2015. Thereafter, applicant/accused has filed bail application before this Court. Mr. Muhammad Mushtaque Qadri, learned counsel for applicant/accused Arif Iqbal contended that dishonoured cheques were not issued by the applicant/accused. Co-accused Kashif Ali Khan has been granted bail by the trial Court. He has argued that there is civil dispute between the parties, investigation is complete, challan has already been submitted. Applicant/accused is in jail since 9 months, yet there is no progress in the trial. He has argued that alleged offences do not fall within the prohibitory clause of section 497, Cr.P.C. In support of his contentions, he relied upon the cases of Safdar Hussain v. The State (2005 YLR 1607) and Muhammad Nazir v. Fazal Karim and others (PLD 2012 Supreme Court 892). Mr. Ali Haider Saleem, learned Assistant Prosecutor General Sindh, argued that applicant/accused was Sales Manager of the company and has committed the offence but he conceded that no cheque was issued by applicant/accused. Learned A.P.G. has also conceded that co-accused Kashif Ali Khan has been granted bail by the trial Court. However, he opposed the bail application. I have carefully heard the arguments of learned counsel for the parties and perused the record. It is admitted fact that applicant/accused himself has not issued dishonoured cheques. As regards to the registration of FIR under section 489-F, P.P.C. is concerned, in order to appreciate as to whether the police had rightly applied this provision of law or not, the same is reproduced hereunder: "489-F. Dishonestly issuing a cheque.

Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years or with fine, or with both; unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." A bare perusal of this section would reveal that to constitute an offence under this provision it is essential to prove that the accused dishonestly issue cheques towards repayment of a loan or fulfillment of an obligation, which is dishonoured on presentation. In this case applicant/accused has not issued the cheques. In this view of the matter, the question regarding applicability of section 489-F, P.P.C., keeping in view the allegation against applicant/accused calls for further probe at this stage. Applicant/accused is lodged in jail since 06.02.2015. Investigation has already been finalized. Co-accused Kashif Ali Khan has already been granted bail vide order dated 23.02.2015. Dispute is of civil nature. Thus, his continued custody is not likely to serve any beneficial purpose at this stage. There is no progress in trial. Alleged offences against applicant/accused do not attract the prohibitory clause as contained in subsection (1) of section 497, Cr.P.C. In the circumstances, prima facie, case of the applicant/accused calls for further inquiry into his guilt as contemplated under section 497(2), Cr.P.C. While relying upon the above cited authorities, concession of bail is extended to applicant/accused Arif Iqbal son of Muhammad Younus, subject to his furnishing solvent surety in the sum of Rs.500,000/- (Five Hundred Thousand), and P.R bond in the like amount to the satisfaction of trial Court. Needless, to mention here that the observations made hereinabove are tentative in nature and should not influence the trial Court while deciding the case of the applicant/accused on merits. HBT/A-87/Sindh Bail granted.