Syed RASHID IQBAL vs STATE

ORDER

1. Through this application the applicant Syed Rashid Iqbal facing charge on the offences under Sections 419, 420, 467, 471, 161/34, P.P.C. read with Section 5(2) of Act II of 1947 under F.I.R.No,65 of 2005 of Police Station AEC Karachi seeks bail.

2. The applicant is charged with receiving of bribe for appointment of various police constables while he was posted as R.I. Gulshan Base-II, Karachi. On the strength of letters alleged to have been forged under the signature of Sikandar Ali Magsi S.P. of SRP Gulshan Base. After the respective appointments the constables were posted at different places and imparted police training. It is also alleged that during this period they were asked to serve as personal employee of the applicant and were asked to attend his cattle farm. On 15.10.2005 the applicant was arrested while he was under custody for another offence. It is further alleged that police constables Jamal Khan son of Shehzad Ahmed Khan, Buckle No, 4264 was appointed as constable but physically another person by the same name of Jamal Ahmed son Nazir Muhammad was performing the duties and getting salary against the name of actually appointee. Such personnel had been assigned the sensitive task as performing VVIP duties.

3. Mr. M. Ilyas Khan, learned counsel for the appellant, has contended that the applicant has been involved in case due to personal enmity with regard to disciplinary action against a constable namely M. Adnan Salim. He has relied upon comments of the Superintendent of Police SRP Gulshan Base-II, Karachi dated 25.8.2005 showing misbehaviour and indiscipline of the said constable who even admitted of having aimed the pistol at R.I. Syed Rashid Iqbal, the present applicant. Learned counsel also relied upon Section 165-A, P.P.C. and Section 3 of a Qanoon-e-Shahadat Order to show that the person himself involved in act of corruption is not a competent witness. Regarding the functions of the officers pertaining to new appointments against the vacancies and the maintenance of their service books reliance has been placed upon Police Rules 12.32 and 12.36.

4. Learned counsel further proceeded to argue that it is a mala fide action as first F.I.R. No, 28 of 2005 was lodged against the applicant followed by F.I.R. No, 49 of 2005 and the action is being taken in a mala fide manner to rope in the present applicant. He further proceeded to argue that the accomplice who himself is involved in commission of the offence has to be dealt with according to the provisions of law and not at the whims of the investigating authorities. One of the witnesses is himself involved and played a pivotal role. He has been alleged to have received the amount but has been let off which shows that even the provisions of law as to an approver are not being observed. In support of his contentions, learned counsel has relied upon the cases of Faqirullah v.

5. Khalil-uz-Zaman (1999 SCM R 2203), M. Abdul Latif v. G.M. Paracha and others (1981 SCM R 1101) and Zaheer Behzad v. The State (2003 YLR 1582).

6. Mr. Sohail Jabbar, learned State Counsel, argued that there is sufficient material in the shape of statements of Jamal Ahmed Khan, Abdul Malik and Sikandar Ali recorded under Section 161, Cr.P.C. by the Investigating Officer. Reference has also been made to statement of SSP Siknadar Ali Magsi regarding his signatures on the letter of appointment. However, learned State Counsel admitted that neither he has been made a witness nor sought nor could give any satisfactory explanation for doing so. Learned State Counsel on being asked also stated that the police constables alleged to have been appointed fraudulently are performing their respective duties and they have not been recalled. Thereafter he again consulted with the Investigating Officer and stated that they are not performing their duties but no orders to his effect have been issued and further investigation is under progress. However, learned State Counsel candidly conceded that the investigation is based on official record, some of which has been secured by the Anti-Corruption Police and the remaining record is with the police department and no document is in possession of the applicant.

7. Mr. Sabir Haider, learned A.A.-G., addressed with the permission of the Court. He argued that co- accused S.-I. Abdul Wahab involved in the case has also absconded and there is likelihood that in case bail is extended to the applicant, he would also abscond. He also argued that the case of the applicant is based on documentary evidence involving him with the commission of the offence and the inquiry is under progress. It has also been argued on behalf of the prosecution that the statements of the witnesses under Section 164, Cr.P.C. are being recorded which are being delayed for non-cooperation of the defence.

8. In view of the record available and produced it appears that the statements made before the Investigating Officer by witnesses who have been mentioned in the challan have been deliberately not substantiated by making the SSP Sikandar Ali Magsi a witness to the prosecution case. Reply by the learned State Counsel to the effect that he would be joined as a witness after report of the Handwriting Expert is hardly satisfactory and makes the case one of further inquiry. This could not be rebutted by the learned State Counsel. The background of enmity is reflected from the documents produced by the applicant along with his bail application which are not denied by the prosecution. A further and deeper appreciation of evidence is not required at this bail stage.

9. Absconsion of co-accused referred to by the learned A.A.-G. cannot be made a ground for denying the bail to the present applicant.

10. Mr. M. Ilyas Khan has made a categorical statement that neither the applicant nor the counsel representing the applicant would seek any adjournment on any date during the process of recording of statements under Section 164, Cr.P.C. and the bail may be recalled in the event of even a single request for adjournment. If sufficient evidence is brought on record prosecution can always move for cancellation for bail granted to the applicant. Under the circumstances, as prima facie case for enlargement of the applicant on bail on ground of further inquiry has been made out, the applicant is admitted to bail subject to furnishing of two sureties in the sum of Rs, 5,00,000 (Rupees Five Lacs) each with P.R. bond in the like amount to the satisfaction of the learned trial Court.