MUHAMMAD ASHFAQUE AHMED Versus THE STATE
ORDER
1. Applicants Muhammad Ashfaque Ahmed and Muhammad Oasim, who are accused in F.I.R. No. 2/93 of Police Station F.I.A., registered on 20-1-1993 under sections 18fi/409, 419, 420, 468, 471, 34, P.P.C. read with section 5(2) of the Act II of 1947, have approached this Court for bail, after their such application is rejected by the Special Judge (Central l) Karachi on 9-2-1993.
2. The facts as given by the complainant Inspector Agha Ishrat Ali of F.I.A. Circle I, Karachi, in the F.I.R. are, that consequent upon an enquiry it transpired that accused Khalil, an employee of T&T Department had purchased a flat in Building No.38/D, Stadium Lane No.1 in the D.H.A. for Rs.5,60,000. The said Khalil Ahmed was, during the time he purchased the flat, posted at Clifton Telephone Exchange as a Technician. He applied for new telephone connections, which were 5855187, 5855982, 5855268 and 5855127. Said Khalil Ahmed also got transferred two telephone connections bearing Nos.5851447 and .5851443 at the said address. All six telephone connections were in the names of fictitious persons and this was done by Khalil Ahmed in connivance with his colleagues whose names are mentioned in the F.I.R. and amongst them are the two applicants herein. Through the said telephones, accused started business of illegal and unauthorised public call office and provided facilities of overseas calls to their customers. For just one month of December, 1992 alone, an amount of rupees over one million was shown as arrears outstanding against the four telephones out of the six, provided in the said flat. Applicants and co-accused being public servants are alleged to have misused their official position, prepared forges documents while obtaining telephone connections which they used for illegal purposes causing huge monetary loss to the Government Exchequer.
3. Co-accused Muhammad Yaqoob after his arrest gave judicial confession on 31-1-1993 and had confessed his guilt, also showing collaboration of some accused with him in the offence. Bail Application No.128 of 1993 moved by the accused Muhammad Yaqoob was dismissed by me on 1-3-1993.
4. Mr. M. Ilyas Khan, learned Advocate for the applicant, has contended that the applicant Muhammad Ashfaq Ahmed was a Clerk in G.P.O., Karachi while the applicant Muhammad Qasim is an Engineering Supervisor (Phones) and no role is attributed to both of them either in the F.I.R. or in the judicial confession of co-accused Muhammad Yaqoob. It is further contended that the alleged offence would not fall under section 409 of P.P.C. as the element of entrustment is missing and further that no forgery or falsification of record is shown to have been committed under the provisions of sections 468, 471 of P.P.C. He has referred to certain provisions of the Telegraph Act, 1885 and has referred to section 3 of the said Act which defines the word "telegraph" and it includes appliances and apparatus for making, transmitting or receiving telegraphic, telephonic or other communications by means of electricity, etc. According to the learned Advocate, misuse of a telephone in the manner as alleged and even if taken to be true, would fall within the perview of the Telegraph Act, which offences are punishable under section 20, 20-A, 21-A or 27 of the said Act but would not be covered by any provisions of the Pakistan Penal Code or of Act II of 1947. He has next contended that in his judicial confession, co-accused Muhammad Yaqoob has not implicated the present applicants. He has referred to the case of Dost Muhammad v. The State 1992 P Cr. L J 474, where bail was granted to the accused on the premises that from the allegations in the F.I.R. and the challan it was yet to be determined as to which of the two provisions, namely, Customs Act, 1969 or Prohibition (Enforcement of Hadd) Order, 1979 would be applicable in the case of the accused. Case of accused was held to be of further enquiry and bail was granted. He then referred to Abdul Karim and another v. The State 1988 P Cr. L J 369. In this case, the learned Judge of this Court granted bail, where 350 Kgs. of Charas was recovered from the Truck and it was observed that whether case would fall within the jurisdiction of the Special Judge Customs or within the perview of Prohibition Order, needed further enquiry. It is lastly contended by the learned Advocate that except mention of names of applicants in the F.I.R. there is nothing more to connect the applicants with the offence and they would, therefore, be entitled to grant of bail.
5. Mr. Habibur Rasheed, learned Advocate appearing for the State had in the early hour of the day when arguments of the applicant's counsel were concluded, requested for time to go through the entire investigation papers. When the case was taken up in the later part of the day, Mr. Habibur Rasheed conceded to the grant of bail and stated that as many as 16 witnesses whose 161, Cr.P.C. statements have been recorded have not implicated the two applicants herein. He has further pointed out that in his confession, the co -accused Muhammad Yaqoob has not implicated the present applicants, although names of applicants are mentioned in the F.I.R.
6. I have heard the learned counsel at length and perused the record as well as the earlier order passed on the bail application of co-accused Muhammad Yaqoob. I do not think it proper to give any findings with regard to the contention of the applicant's learned Advocate that the case would fall under the Telegraph Act and not under the provisions of Pakistan Penal Code, as, such observation is likely to prejudice the case of the prosecution and may even take away the jurisdiction of the Special Judge before whom the case is pending. It is, therefore, that in my view the case-law referred by the learned Advocate is not applicable to the facts of the instant case. However, as pointed out by the learned Advocate appearing for the State, there is no evidence whatsoever against the applicants, and at least from the evidence of the 16 witnesses whose statements under section 161, Cr.P.C. are recorded, nothing is brought home against them. Even in his judicial confession, co-accused Muhammad Yaooob has not implicated the present applicants. Their case, in my view, in these circumstances, would require further enquiry and there are no reasonable grounds to believe that the applicants are guilty of the alleged offences and even the prohibitory clause of section 497 of Cr.P.C. is not attracted. I am, therefore, inclined to grant them bail. Applicants shall be released on bail on furnishing one surety each in the sum of Rs.1,00,000 (Rupees one lac only) with P.R. bond in the like amount to the satisfaction of the Nazir of this Court. Any observation made in this order is tentative in nature and the trial Court shall not be influenced by such observations while deciding the case.
7. N.H.Q./M-1898/K Bail granted.