ADNAN-UL-KARIM MEMON, J.---The Applicants namely Nadeem Ansari and Junaid Ansari are seeking release on bail in FIR bearing No.241/2017 for offence under section 489-F, P.P.C. registered at Police Station Site, Super Highway, Industrial Arear Karachi.
2. Facts of the prosecution case are that on 18.05.2017 Complainant namely Muhammad Najeeb son of Muhammad Hanif registered above specified FIR alleging therein that he was doing business since about 2/3 years. Per complainant he handed over Rs.60,00,000/- (Rupees sixty lacs) to accused Kashif Masood, Nadeem Ansari, Junaid Ansari and Umair for business and they assured to return amount with certain profit in lieu of which they handed over 35 postdated cheques to Complainant. Per complainant, they with mala fide intention failed to deliver the principal amount as well as profit on it. It is further claimed by the Complainant that in the month of June, 2017 he deposited cheques in the bank account for encashment but as per bank statement/endorsement all the cheques were bounced due to non-availability of funds in bank account. However, on 18.05.2017 at about 05.00 p.m. Applicant/Accused called Complainant at W-25 Stop, new Bank Al- Falah, Industrial Area, Karachi where on gun point they issued threats of dire consequences to him.
Thereafter, Complainant lodged above specified FIR against Applicants and others.
3. Investigating Officer recorded statements of prosecution witnesses, arrested Applicants on 06.06.2017, secured relevant material and finally submitted Charge Sheet on 16.06.2017 before learned Judicial Magistrate, Malir, Karachi against Applicants and others by dropping sections 420, 406, 506-B and 34, P.P.C. only 489-F. P.P.C. was incorporated with certain reasoning. The Applicants moved Bail Application No. 36 of 2017 before learned Xth judicial Magistrate Malir, which was dismissed on 3.6.2017, Thereafter Applicants moved bail Application No. 728 of 2017 before 4th Additional Session Judge Malir, Karachi, which was also dismissed on 17.6.2017, thereafter Applicants moved another bail Application No. 72 of 2017 before learned Xth Judicial Magistrate Malir, Karachi, which met the same fate on 21.6.2017. Lastly the Applicants moved another bail Application No.786 of 2017 before learned H Additional Sessions Judge, Malir, Karachi, who also dismissed the same vide Order dated 22.06.2017. Hence, the Applicants have preferred instant Bail Application before this Court.
4. Mr. Nasir Ahmed, learned counsel for Applicants contended that Applicants are innocent and have been falsely implicated by Complainant with help of police; that Complainant has not given description of alleged business nor he disclosed the exact purpose for giving Rs.60,00,000/-; that Complainant has also not pointed out as to which one of the above specified accused persons received the above said amount from the Complainant; that no alleged rate of profit has been disclosed; that the alleged cheques were given to Complainant as surety and not fulfillment of any obligation or repayment of loan as portrayed by him; that there is no witness in whose presence the alleged cheques were handed over to Complainant; that the Complainant with mala fide intention has fabricated a story of his own to attract sections 420, 406, 506-B and 489-F, of P.P.C. respectively; that these sections are not applicable thus are dropped by Investigating Officer in the charge sheet and Applicants are charged under section 489-F, P.P.C. only, which is even otherwise not attracted in the present case; that the alleged offence under section 489-F does not fall with the prohibition contained in section 497(1) , Cr . P. C . , therefore, case against the Applicants requires further inquiry; that the whole case of the prosecution depends upon the documentary evidence which is available with the prosecution, therefore, there is no question of tampering with the same; that the basic ingredients of section 489-F are missing therefore, Applicants cannot be saddled with criminal liability; that the matter between the parties is of civil nature but, Complainant has converted it into a criminal case which requires further inquiry; that Applicants are ready to furnish security equivalent to the amount of subject cheques to secure the interest of Complainant. He lastly prays for grant of bail to Applicants. In support of contention, he relied upon in the case of Muhammad Sarfraz v. The State (2014 SCM R 1032) and Saeed Ahmed v. The State (1995 SCM R 170).
5. Mr. Muhammad Imran Ameer, learned counsel for Complainant has contended that Applicants have committed serious offence of fraud and forgery with Complainant by issuing bogus cheques which were subsequently on deposit bounced on account of insufficient funds in their bank account; that Applicants in connivance with accused namely Kashif Masood and others have cheated the Complainant by assuring him profit on principal amount but, they failed to do so thereby committed offence of fraud and forgery; that due to illegal and fraudulent act on the part of Applicants the Complainant has suffered set back in the business, therefore, they are not entitled to concession of bail; that the Applicants have admitted to have delivered the cheques to the Complainant in memo of bail application, therefore, there is admission on their part and offence under section 489-F, P.P.C. is fully attracted, which stands proved against them and no concession of bail may be given to the Applicants; that Complainant demanded his amount from Applicants on which they issued threats of murder therefore no leniency be extended to them. In support of his contention, he relied upon the cases of Muhammad Nawaz v. The State and others (2011 M LD 299), Arif Iqbal v. The State (2016 PCr.LJ Note 57), Asad All v. The State (2011 PCr.LJ 752) and Shameel Ahmed v. The State (2009 SCM R 174).
6. Sayed Zahoor Shah, learned D.P.G has opposed the grant of bail to the Applicants while adopting the arguments of learned counsel for the Complainant.
7. I have heard learned counsel for Applicants, learned D.P.G for State, learned counsel for Complainant and perused the material available on record as well as case law cited at the Bar.
8. I am conscious of the fact that while deciding a bail application this court has to make tentative assessm ent of the record which in this case is reflecting the following aspects:
(i) There was business transaction between Applicants and Complainant on profit and loss basis.
(ii) Applicant No. 1 (Nadeem Ansari) issued four cheques in the sum of Rs. 311,000/-, whereas Applicant No.2 (Junaid Ansari) issued three cheques in the sum of Rs. 250,000/-.
(iii) That alleged cheques were issued in the year 2016, whereas the same were presented in the bank in the month of June 2017 when due to insufficient of funds were bounced.
(iv) Charge Sheet has been submitted and Applicants are not required for investigation.
(v) Alleged offence is punishable up to three years.
(vi) Applicants, without prejudice to their right are ready to furnish security equivalent to the amount of cheque on their part.
9. I have noted that Applicants are charged with offence punishable under section 489-F, P.P.C. maximum sentence for which is three years imprisonment thus, the same does not fall within prohibitory clause of section 497, Cr.P.C. Complainant has not given description of alleged business, as to how, when and by what process various amounts were paid to the applicants nor he disclosed the exact purpose for giving Rs.60,00,000/-, these factual aspects of the matter will be determined by the learned trial court at the time of recording of evidence. Applicants are behind bars since their arrest on 06.06.2016. The case against Applicants is based on documentary evidence which is yet to be determined by Trial Court. I am fortified by the decision rendered by the honorable Supreme Court in the case of Muhammad Sarfraz v. The State (2014 SCM R 1032) wherein bail was granted for the offence under section 489-F, P.P.C. and in the case of Saeed Ahmed v. The State (1995 SCM R 170) wherein concession of bail was extended to accused on the basis of documentary evidence.
10. The case law cited by the learned counsel for the complainant is distinguishable from the facts and circumstances of the present case.
11. In view of tentative assessm ent of the record discussed supra the case of Applicant requires further inquiry as provided under section 497(2), Cr.P.C. The Applicants have made out a case of bail at this stage. Accordingly, Applicants are admitted to bail subject to furnishing solvent security in the sum of Rs.250,000/- (Rupees two lacs and fifty thousand only) each and PR bond in the like amount to the satisfaction of Trial Court.
12. The above findings are tentative in nature which shall not prejudice the case of either party during the course of trial.