PLJ 2024 Cr.C. (Note) 104
[Sindh High Court, Karachi]
Present: Khadim Hussain Tunio, J.
versu
STATE--Respondent
Crl. Bail Application No. S-939 and S-941 of 2023,
decided on 30.10.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 406, 420, 506/2 & 34--Pre-arrest bail, grant of--Further inquiry--Allegation of--Repayment of loan--There is a delay of nearly eight months in lodging of FIR for which no plausible explanation has been given--The entire case rests on documentary evidence which is already with prosecution, challan has also been submitted as such there is no apprehension of destruction of evidence--The applicants have also joined trial and had earlier joined Investigation as such there are no reports of misuse of concession of interim pre-arrest bail--S. 420, PPC is bailable whereas applicability of S. 406 and 506(ii), PPC require strong evidence which can only be determined at trial as already observed--The applicants have also alleged malafide against complainant which is a significant consideration at this stage--None of Sections applied fall within ambit of prohibitory clause of S. 497, Cr.P.C. and it cannot be stressed enough while reiterating that in cases where, generally, prescribed punishment does not fall within ambit of prohibitory clause, grant of bail to an accused is de jure, whereas denial is an exception--Bail allowed. [Para 6] A
PLD 2017 SC 733.
Mr. Muhammad Fayaz Arain for Application (in Criminal Bail Appln. No. S-939 of 2023).
Mr. Siraj Ahmad Bijarani Asst. P.G for State (in Crl. Bail Appln. No. S-939 of 2023).
Mr. Rasool Bakhsh & R.B Solangi, for Applicants (in Crl. Appln No. S-941 of 2023).
Mr. Siraj Ahmed Bijarani, Asst.P.G for State (in Crl. B. Appln. No. 5-941 of 2023).
Mr. G.M Laghari, Advocate holding brief on behalf of Mr. Abdul Khaliq Laghari (in Crl. B. Appln. No. 5-941 of 2023).
Date of hearing: 30.10.2023.
Order
Through this common order, I intend to dispose of the captioned criminal bail applications, the applicants seek pre-arrest bail in Crime No. 112/2023, registered at P.S Tando Muhammad Khan, for offence under Sections 406, 420, 506/2 and 34, PPC. They had approached the learned 1st Additional Sessions Judge, Tando Muhammad Khan with the same plea, but it was declined vide order dated 25.08.2023.
2. Precisely, the allegations against the applicants are that on 28.06.2022, the complainant had given 22 tolas and 2 grams of gold to the applicants against an amount of Rs. 1,260,000 with a 5% interest rate which he had obtained as a loan from the applicants on an agreement that his gold will be returned upon payment of the loan amount. On paying the amount back, he did not receive his gold and was kept on false hopes. On 01.11.2021, he took another loan of Rs. 150,000/- from applicant Suneel Kumar and submitted his cheque book who refused to return the same to him after his repayment of the loan. Hence, the FIR.
3. Learned counsel for the applicants has jointly contended that the FIR is delayed by several months; that no business agreement has been placed on the record nor any evidence is available to suggest there were any such transactions between the parties; that in fact the complainant had taken a Corolla car from the applicants and had given a cheque which was dishonoured, therefore he concocted the story to save himself and harass the applicants; that none of the Sections applied within the FIR fall within the prohibitory clause of S. 497, Cr.P.C., that no such incident has ever taken place and the complainant has not come to the Court with clean hands.
4 Learned Assistant Prosecutor General assisted by Mr. G.M Laghari, who is holding brief on behalf of Mr. Abdul Khaliq Laghari, Counsel for complainant vehemently opposed the confirmation of pre-arrest bail in favour of the applicants.
5. I have heard the learned counsel for the respective parties and perused the record available before me.
6. Admittedly, there is no agreement between the complainant and present applicants with respect to the loan amount as it has been specifically denied and no documents establishing the same are available on the record which even otherwise would have to be thrashed at trial for their veracity. This alone brings the case of the applicants under one of further inquiry. The complainant has alleged business transaction with the applicants and the applicants, too, have alleged business transactions against the complainant with respect to a cheque that was dishonoured and the same was issued by the complainant. This version is corroborated even by the complainant’s own statement in the FIR who has painted it as his cheque being misused by the applicants, however again he has failed to prove the said allegation. FIR No. 108/2023 has been lodged against the complainant for the said dishonoured cheque. All of this can only be determined by the trial Court after recording of evidence of the parties and the same cannot be looked into at bail stage. Furthermore there is a delay of nearly eight months in the lodging of FIR for which no plausible explanation has been given. The entire case rests on documentary evidence which is already with the prosecution, the challan has also been submitted as such there is no apprehension of destruction of evidence. The applicants have also joined trial and had earlier joined the investigation as such there are no reports of misuse of concession of interim pre-arrest bail. S. 420, PPC is bailable whereas the applicability of Ss. 406 and 506(ii), PPC require strong evidence which can only be determined at trial as already observed. The applicants have also alleged malafide against the complainant which is a significant consideration at this stage. None of the Sections applied fall within the ambit of prohibitory clause of S. 497, Cr.P.C. and it cannot be stressed enough while reiterating that in cases where, generally, the prescribed punishment does not fall within the ambit of prohibitory clause, grant of bail to an accused is de jure, whereas denial is an exception. The Hon’ble Apex Court in case reported as PLD 2017 SC 733 (Muhammad Tanveer v. The State and another) has made it very clear with respect to the bail in offences not falling within the ambit of prohibitory clause that:
“We are shocked and disturbed to observe that in case of this nature, not falling within the prohibitory contained in Section 497, Cr.P.C. invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly the accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation.”
7. For the foregoing reasons, the applicants have successfully made out their case for grant of pre-arrest bail, therefore, interim pre-arrest bail already granted to the applicants / accused vide order dated 28.08.2023 is confirmed on the same terms and conditions.
8. Needless to state that the observations made hereinabove are tentative in nature and shall not influence the mind of the learned Trial Court at the time of final disposal of the case.
(A.A.K.) Bail allowed
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