1. ' SYED HASAN AZHAR RIZVI, J.---By this application under section 497, Cr.P.C. Applicant Muhammad Naseem has approached this Court for grant of bail in Crime No,113 of 2010 of Police Station Aziz Bhatti, Karachi, wherein he has been charged with the commission of offence punishable under sections 489-F/420/506/34, P.P.C.
2. ' In a nutshell, the case of prosecution as per F.I.R. Is that S.I. Sultan Ahmed Malangi received a written application from the office of SHO Sahab dated 16-2-2010 wherein the complainant Muhammad Farooque stated that he has friendly terms with 1) Muhammad Naseem, 2)
3. Muhammad Naveed Shaikh, 3) Muhammad Tahseen Ahmed and 4) Humayun Shahnawaz of Messrs Naseem Trading Company, Al-Amina Trading Company, Al-Amina Dyers, Masoom Ali sons and Tehseen Enterprises. They asked him to financial support as they are in need of huge amount.
4. On their repeated demands complainant and his brother paid them money in cash, through pay- orders and cheques as loan. They promised to return the same within few months along with mark-up. Subsequently, at their insistence complainant and his brother Nazeer Moosa mortgaged their properties with NIB Bank SITE Branch and obtained loan and under their instructions made Pay-Orders and cheques in the name of some companies and other persons and handed over the same to them and also paid some amount in cash to them. Against which they have issued and handed over various cheques of different banks, including Cheque No, 9892236 of Nasim Trading Company, dated 30-8-2008 drawn on Askari Bank Limited, Gulshan-e-Iqbal Branch, Karachi for Rs,60,00,000 when complainant deposited the same in his account on 5-9-2008, the bank through memo informed him that funds are not available in the concerned bank account and the cheque has been dishonoured. After registration of the F.I.R. Police arrested the accused persons, hence present bail application.
5. ' The learned 1st Additional Sessions Judge Karachi (East) has granted Criminal Miscellaneous Application No, 2020 of 2011 on 22-11-2011 filed by the complainant Muhammad Farooque for cancellation of by XVI Judicial Magistrate, Karachi (East) vide his order dated 25-10-2011 to respondent Muhammad Nasim holding therein that there was sufficient reasons to believe that the respondent would abscond if he is released on bail as number of other similar cases have been registered against him and the offence with which the applicant has been charged does not fall within the ambit of prohibitory clause of section 497, Cr.P.C.
6. ' I have heard Mr. Muhammad Ikram Siddiqui, learned counsel for the applicant, Messrs Muhammad Rafi and Kh. Mohammad Azeem, learned counsel for, the complainant and Mr. Abrar Ali Khitchi, learned Assistant Prosecutor-General, Sihdh.
7. ' Mr. Muhammad Ikram Siddiqui, learned counsel for the applicant has argued that the applicant is innocent and has falsely been implicated in this case with mala fide intention and ulterior motive. He argued that the learned ADJ Karachi (East) did not consider the very important aspect of the case that the applicant is neither the sole proprietor of Messrs Nasim Trading Company nor cheque in question belongs to him and he is not signatory of the said cheque. He argued that the cheque was issued by Muhammad Tehseen, sole proprietor of Messrs Nasim Trading Company and as such the applicant has no concerned with the dealing between complainant and Muhammad Tehseen. He further argued that there is inordinate delay of. Three years in lodging of the F.I.R. Without any plausible reasons.
8. He supported the order passed by XVI Judicial Magistrate Karachi (East) dated 25-10-2011 and submitted that the learned trial Court has rightly passed the order on the ground that the applicant is not the signatory of the alleged cheques. Learned counsel urged that the name of the applicant mentioned in the F.I.R. But no role has been assigned to him. He referred to the statement recorded under section 161, Cr.P.C. Of Shafqat Ali Abbasi, Operation Manager, Askari Bank, wherein it has been stated that neither the applicant is the account holder nor he is signatory of cheque. He argued that the applicant is an aged and sick person and as such entitle to be released on bail. He urged that no documentary evidence available with the prosecution against the present applicant and further no documentaryproof available for misuse the concession of bail. Learned counsel in support of his submissions has placed reliance upon the cases of RIAZ JAFAR NATIQ v. MUHAMMAD NADEEM DAR and 6 OTHERS (2011 SCM R 1708) and MUHAMMAD SHAFIQ v. THE STATE (2011 PCr.LJ 869).
9. ' On the other hand, Messrs Muhammad Rafi and Kh. Muhammad Azeem, learned counsel for the complainant- has support the impugned order passed by 1st ADJ Karachi (East) and contended that the complainant before lodging of F.I.R. Against the applicant and his sons sent letter dated 16-8-2008 to the applicant Muhammad Nasim and his three sons requesting for payment of dishonoured cheques through TCS, but the applicant did not respond or return the amount mentioned in the said letter. They argued that applicant son lodged F.I.R. On 29-9-2008 after issuance of notice dated 16-8-2008, which was registered and declared 'C' class and the said report of 'C' class was approved by IIIrd Judicial Magistrate on 14-3-2009. They drawn attention of the Court to a Civil Suit filed in this Court bearing No,B-80 of 2008 (Habib Bank Limited vs. Muhammad Nasim and others) and contended that in the said suit the applicant filed leave to defend application wherein he himself admitted that he is the sole proprietor of Messrs Naseem Trading Co., who is the principal Borrower. Whereas, the defendants Nos.2 to 11 are mortgagors and guarantors for the defendant No,1 Muhammad. Naseem. They further contended that the sons of applicant applied for grant of bail and after obtaining the bail both of them misuse the concession of bail and declared proclaimed offender. They lastly contended that the applicant is involved in various cases and if the bail is granted he will also abscond like done by his sons. In support of their submissions, learned counsel has placed reliance on the cases of WASEEM BARI v. THE STATE (2008 YLR 760), SHOUKAT ALI v. THE STATE (2009 PCr.LJ 19), SAMAN IMTIAZ v. THE STATE (2009 PCr.LJ 805) and IJAZ AHMED v. MUHAMMAD ASLAM AND OTHERS (2009 PCr.LJ 1140).
10. ' Mr. Abrar Ali Khitchi, learned Assistant Prosecutor-General, Sindh has adopted the arguments advanced by the learned counsel for the complainant. He opposed the grant of bail to the present applicant.
11. I have carefully considered the arguments advanced by the learned counsel and perused the material available on record, which goes to show that the present applicant was granted bail. By XVI Judicial Magistrate Karachi (East) on 25-10-2011, which was cancelled by learned 1st Additional Sessions Judge Karachi (East) vide order dated 22-11-2011. The grounds taken in the instant application for grant of bail to the applicant Muhammad Nasim are that the applicant is neither the sole proprietor of Messrs Nasim Trading Company nor he was the signatory of cheques in question. On the contrary, the applicant in Suit No,B-80 of 2008 himself stated that he is the sole proprietor of Messrs Nasim Trading Co whereas co-accused namely Muhammad Tehseen, Muhammad Naveed and Humayun Shahnawaz are his sons and are mortgagors and guarantors of applicant. This fact is also corroborate from NTN, which shows that Muhammad Nasim was the sole proprietor of Messrs Nasim Trading Company, situated at 9-A, Block-6, PECHS, Karachi.
12. Therefore, it is crystal clear that the applicant is the sole proprietor of Messrs Nasim Trading Co.
13. So far as the delay in lodging the F.I.R. Is concerned, the complainant has given necessary explanation, as the documents filed by the complainant are sufficient to ignore the delay in lodging the F.I.R. Moreover, if the applicant is innocent why he remained absconder for years together. Not only the applicant but his sons after obtaining bail have misused the concession of bail and absconded from the Court of law and have been declared as proclaimed offenders. In this case huge amount of Rs,60,00,000 has been involved and if the applicant is released on bail, there is every likelihood of his absconsion, as has been done by his two sons. Additionally, the material available on record shows that applicant is a habitual offender of such cases, who dishonestly issued the various other cheques which were also dishonoured on their presentation to the bank.
14. ' There is no cavil with the proposition that the alleged occurrence carries the liability for sentence, which may extend to imprisonment of three years and as such prohibition of section 497, Cr.P.C. Is not E attracted, to it. It cannot be denied that in the cases which are not covered by the prohibitory clause of section 497, Cr.P.C. Grant of bail is a rule and refusal is an exception yet it also cannot be denied that the bona fide or mala fide of the parties to a litigation are never irrelevant. The mala fide vitiates even the most sacred transaction and each case had to be dealt with on its own facts and circumstances. This is also a rule of law applied by the superior courts that when a person is involved in a series of cases related to offences badly affecting public-atlarge, in such cases discretion of granting bail may be refused to an accused person.
15. ' In view of what has been discussed above and in view of the settled proposition of law that grant of bail to an accused in every case not hit by the prohibitory clause of section 497, Cr.P.C. Was not a rule of universal application, because each case had to be dealt with on its own facts and circumstances. Accordingly, this bail application is IH dismissed.
16. ' Forgoing are the reasons for short order passed on 3-1-2012.
17. Bail rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.