FAIZAN ALI Versus State
ORDER
AFTAB AHMED GORAR, J.--- Through this bail application, applicant Faizan Ali son of Muhammad Ali has assailed the legality and propriety of order dated 14.07.2017 passed by learned Additional Sessions Judge-IX, Karachi (South), in Bail Application No.1162 of 2017 filed under Crime No.272 of 2017 registered with police station Preedy for the offence punishable under sections 420/406/34, P.P.C., whereby the learned Judge after hearing the parties dismissed the bail plea of the applicant. It may be mentioned there that prior to file instant bail application, three bail applications were also filed before the learned trial Court on behalf of applicant in which first bail application bearing No.34 of 2017 was dismissed on 14.07.2017 by the learned Judicial Magistrate-XV, Karachi (South), thereafter, after submission of Challan, the Second Bail Application No.37 of 2017 was filed on which father of applicant Muhammad Ali was granted bail and bail plea of applicant was also dismissed vide order dated 29.07.2017 passed by the learned Judicial Magistrate-XV, Karachi (South). Being aggrieved and dissatisfied with the aforesaid order dated 29.07.2017, applicant preferred bail application bearing No.1162 of 2017 before the learned Additional Sessions Judge-IX, Karachi (South), which was also dismissed vide order dated 09.08.2017. Hence, this bail application.
2. The brief facts of the prosecution case as per FIR are that complainant came at police station and handover the order of Additional Sessions Judge-VIII, Karachi and recorded his statement under section 154, Cr.P.C. as under:-
"Statement under section 154, Cr.P.C. in Muhammad Waqas son of Abdul Samad resident of House No.10/1, Block-4E, Nazimabad No.4, Karachi, he stated that I am residing at above said address and doing business of Gold manufactured at Shakil Centre, Raja Ghazanfar Ali Khan Road, Karachi from 1-1/2 years I have business dealing with Faizan son of Muhammad Ali and his father Muhammad Ali son of Muhammad Ilyas because they were also my in laws, during the business my eleven half kg gold is due upon them. I several time requested, during the business I given gold ornaments to them and they sold out it to market or given pacca gold, Faizan Ali given me pacca gold but its weight were shortage and in this connection he told that when he completed recovery in market he will complete the weight of gold and due to said practice Faizan Ali shortage about 11-5 kg gold, when I requested to Fakan Ali then he made enemy neither they given my gold nor return my amount in spite of that they issued threats, therefore, I submit application to police station later filed petition to the honorable Court, now I given my statement as per order, my claim against Faizan Ali and Muhammad Ali they committed breach and fraud with me and usurped my 11-5 kg gold, take action."
3. Mr. Maroof Hussain Hashmi, learned counsel for the applicant contended that the applicant is innocent and has been falsely implicated by the complainant with mala fide intention. Per learned counsel, Muhammad Ali is father in law of complainant while present accused is brother in law of complainant. Per learned counsel, as per FIR, same role were assigned to both the accused and trial Court granted bail only co-accused Muhammad Ali and on the ground of consistency, accused is also entitled for grant of bail. Per learned counsel, all the documents are in custody of prosecution so there is no chance for tampering the evidence if accused is admitted to bail. Per learned counsel, the present applicant filed the application against complainant in Police Station Preedy, wherein it is stated that two months ago, he is sitting in his Karkhana, the complainant and his friend Talha and unknown persons came in Karkhana and on gun point put his signature on blank stamp and took away 2 Kg gold and cash of Rs.2,20,000/- and his vehicle No.AUT-764, maker Vitz Model 2005 along with original documents, NIC and cheque book, therefore, applicant filed application to Police Station Preedy and lodged FIR No.170 of 2017 under section 392/34, P.P.C. against the complainant, the complainant obtained pre-arrest bail from the learned Additional Sessions Judge-IX, Karachi (South) in aforesaid crime. Per learned counsel, the complainant has no any evidence regarding receiving the gold from the accused, the complainant not given any gold to the accused and actually the matter is purely family and civil in nature, but the complainant covert the matter to criminal nature only to blackmail and harass the accused persons. Per learned counsel, the complainant produced Iqrarnama, which is fake document and the accused has no concerned with the said Iqrarnama and all the witnesses are interested witnesses and not belong to market. In such circumstances, the case of prosecution requires further enquiry and the present applicant is entitled for grant of bail. In support of his contentions, learned counsel has relied upon the case laws, which reads as follows:- i. Dastigir v. The State reported as 2002 MLD 240; ii. Faisal Khawaja v. The State reported as 2001 MLD 1237; iii. Nasreen Khilji v. The State and others reported as 1999 MLD 1650; iv. Khursheed v. The State and another reported as 1998 PCr.LJ 761; v. Muhammad Anwar v. The State reported as 1998 PCr.LJ 304; vi. Dr. Abdul Sattar v. Abdur Rahim and 3 others reported as 1990 PCr.LJ 630; vii. Farzand Ali v. Munir Ahmad and 5 others reported as 1987 PCr.LJ 1168.
4. Mr. Jawed Ahmed Chattari, learned counsel for complainant has opposed the grant of bail and submits that the trial Court has been rejected two bail application of present applicant on merits after hearing the arguments of both side counsels and perusal of evidence available on record against the accused. Per learned counsel, the accused is prima facie connected in this case of Breach of Trust amounted on or about Rs.6 Crore. Per learned counsel, the present applicant has been returned 3.5 Kg gold to the complainant and remaining was admitted and executed Iqrarnama before the witnesses who fully supported the prosecution in their 161 Statements one of them is the real uncle of accused namely Ikhlaq Ahmed. Per learned counsel, the snaps shots of the Whats-up are solid proof against the applicant for admitting himself the embezzlement of gold. Per learned counsel, to usurp the embezzled property, the applicant lodged a false FIR No.170/2017 at Police Station Preedy under section 392/34, P.P.C. against complainant, which was declared as 'B' Class by the two investigating officers. Per learned counsel, complainant is son-in-law of the father of applicant Muhammad Ali and brother-in-law of applicant. Per learned counsel, both the accused were managed this cheating/embezzlement on the shoulder of his daughter/sister after got marriage with complainant. Lastly, learned counsel for complainant argued that trial Court had declined three bail pleas of applicant, therefore, he is not entitled for grant of bail.
5. Ms. Seema Zaidi, learned DPG has adopted the arguments of learned counsel for the complainant and submits that sufficient material connecting the applicant with the offence is available on record, therefore, she prayed for the dismissal of bail plea of the applicant.
6. Arguments heard and record perused.
7. Admittedly, the complainant is son in law of co-accused Muhammad Ali and brother in law of the applicant. The applicant along with his father have a business transaction of gold with the complainant. Applicant is nominated in FIR with specific role of having gold transaction with the complainant. Applicant also lodged FIR No.170/2017 at Police Station Preedy under section 392/34, P.P.C. against the complainant on which he was granted interim pre-arrest bail by the learned Additional Sessions Judge-IX, Karachi (South). As per FIR, same role was assigned to both the accused. Co-accused in this crime namely Muhammad Ali, who is father of applicant has already been granted bail by the trial Court. Case has been challaned. Applicant is no more required for investigation. Undoubtedly, case of applicant is at par with the case of the said co-accused, therefore, he is also entitled to equal treatment as meted out to the aforesaid co-accused in the eyes of law following the rule of consistency. Reliance in this regard may be placed on the cases reported as Saeed Ahmed v. The State 1995 SCMR 170), Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Muhammad Azam v. The State (2008 SCMR 249) and Muhammad Daud v. The State (2008 SCMR 1113).
8. By following the dictum as laid down in the above rulings by Hon'ble Supreme Court, which are applicable in all fours to the facts and circumstances of the present case, I reached at conclusion that the applicant is entitled to concession of bail. Applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Lac only) and P.R. bond in the like amount to the satisfaction of the learned trial Court. Applicant is directed to appear before the learned trial Court on each and every date of hearing without fail.
9. Before parting, it needs not to make clarification that the observations recorded above are tentative in nature, therefore, the trial court shall not be influenced in any manner whatsoever.
WA/F-20/Sindh Bail granted.