RIAZ ALI vs THE STATE
This matter arises from a criminal case registered against the applicant Riaz Ali under sections 403, 406, 407, and 34 of the Pakistan Penal Code 1860 at Police Station Hussainabad, concerning allegations of fraudulently encashing a mobile company rent cheque belonging to the co-owner complainant by producing an impersonator. The core legal question is whether the applicant is entitled to the confirmation of pre-arrest bail in the wake of admitted business rivalry, enmity, and the absence of supporting bank witness testimony in the police challan. The Sindh High Court held that mala fide on the part of the prosecution was apparent and confirmed the interim pre-arrest bail granted to the applicant. The key principle laid down is that where pre-trial enmity is evident and essential incriminating material, such as bank witness testimony regarding fraudulent encashment, is missing from the challan, a case for anticipatory bail is made out.
- Whether pre-arrest bail can be confirmed when there is apparent mala fide and admitted enmity between the parties?
- Does the absence of bank official statements in the police challan support the grant of pre-arrest bail in a case involving fraudulent encashment of a cheque?
- Section 403, Pakistan Penal Code 1860
- Section 406, Pakistan Penal Code 1860
- Section 407, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 22-B, Code of Criminal Procedure 1898
ORDER
1. ' The applicant Riaz Ali is required in Crime No.115 of 2004, Police Station, Hussainabad for the commission of offences punishable under sections 403, 406, 407 and 34, P.P.C.
2. ' Mr. Madad Ali Shah, learned counsel for the applicant has submitted that there is ill-will between complainant Mst. Gulshan Ara and applicant Riaz All as Mst. Gulshan Ara and Mst. Farah wife of accused are co-owners of the building All Heights Plaza situated at Qassimabad and on account of ill-will, which is going on the F.I.R. Has been lodged with mala fide intention. He has taken me through the F.I.R., according to which a tower of Mobilink Telephone Company has been installed on the building Ali Heights Plaza for annual rent of Rs.200,000. Each owner is entitled to receive 50% of the rent. It is alleged that a cheque in the sum of Rs.99,000 was issued by Mobilink Telephone Company in favour of Mst. Gulshan Ara complainant through T.C.S. Autobhan Road, Hyderabad, which the applicant Riaz Ali got encashed by producing some fictitious woman who impersonated herself as Mst. Gulshan Ara.
3. ' Mr. Syed Madad Ali Shah has submitted that prior to the lodging of the F.I.R. The complainant Mst.
4. Gulshan Ara submitted an application before Ex Officio Justice of Peace and Sessions Judge, Hyderabad under section 22-B, Cr.P.C. Stating therein that the annual rent was Rs.160,000 and Mobilink Telephone Company used to send cheques of Rs.80,000 to each of the co-owners and that the cheque in the sum of Rs.80,000 was delivered to Riaz Ali husband of Mst. Farah instead of complainant Mst. Gulshan Ara. He has pointed out that in the said application Mst. Gulshan Ara stated in para-7 that the two co-owners have business rivalry and they are at daggers drawn. Mr. Madad Ali Shah has further contended that challan has been submitted in Court and no witness from the bank officials has been cited to establish that any cheque in the name of complainant has been fraudulently encahsed by applicant by producing fake Mst. Gulshan Ara. Mr. Madad Ali Shah has submitted that applicant has been falsely implicated because of admitted enmity between the parties and, therefore, the interim bail before arrest granted to the applicant on 22-2- 2005 may be confirmed.
5. ' Mr. Agha Khuda Bukhsh, learned counsel for the complainant has opposed the confirmation of interim bail before arrest and has submitted that the applicant fraudulently got the cheque in the name of Mst. Gulshan Ara encashed. I specifically asked him to point out the statement of any bank official in this regard, but he was not in possession of any such statement.
6. Mr. Muhammad Azeem Panhwar, learned State counsel has confirmed the version of Mr. Syed Madad Ali Shah that no bank official was examined and cited as a witness in the challan to state that Riaz All has got the cheque encahsed in the name of Mst. Gulshan Ara.
7. ' In the above circumstances, I am of the opinion that the mala fide on the part of prosecution is .
8. Apparent and it is a fit case for grant of anticipatory bail. Consequently, the interim bail before arrest granted on 22-2-2005 is hereby confirmed.