MUHAMMAD ASLAM Versus THE STATE
Applicants Muhammad Aslam and Azmat Ali have sought bail, through two separate applications mentioned above in a case registered at Police Station Railway Cantt. Karachi for an offence punishable under sections 409/109/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. This order shall dispose of both the applications.
F.I.R. in this case was lodged on 17-5-2001 by. S.H.O., Police Station Railway, Karachi who after arresting the accused persons namely applicants A.S.I. Muhammad Aslam and Constable Azmat Ali and co-accused Shahbaz, Ibrahim, Pervez and Salim Masih returned to police station and recorded the F.I.R. on behalf of State.
3. It is the case of prosecution that on receiving information that business of stealing oil from Railway Diesel Shed is going on through the administration and staff, a vigilance team of Railway and the police party headed by complainant S.H.O., Police Station Manzoor encircled the Diesel Shed, Karachi Cantt. and noticed that a motor was running near Oil Tank No.2 and three persons were standing there. Two of them namely the present applicants were apprehended on the spot while the third one managed to escape. The oil was being flown into a sewerage drain. The applicants took the police to a distance of one furlong from where the oil was filled in Oil Tanker through a motor. Four persons namely co-accused Shahbaz, Ibrahim, Pervez Mistri and Salim Masih were standing there who disclosed themselves to be the employees of contractor Nadeem Qureshi. The accused persons disclosed that in the said business Railway Foreman Abdul Hameed, S.I.P., Muhammad Ibrahim Abro son of Muhammad Shaban and one Munna Bhangi were also involved and Nadeem Qureshi was their head.
4. Co-accused Abdul Hameed was granted bail by the learned Special Judge, Central-I, Karachi on the ground that he vas not on duty at the time of incident and no incriminating substance was recovered from his possession while co-accused Muhammad Ibrahim Abro was granted bail before arrest in view of the fact that the only material against him was in the shape of statement of co-accused, the present applicants.
5. Mr. Umar Farooq Khan, learned counsel for applicant Muhammad Aslam contended that this was, at the most, a case of theft and the offence under section 409; P.P.C. was not made out. He argued that main accused is Railway Foreman of Diesel Shed namely Abdul Hameed who has been granted bail by the trial Court. According to him, the duty of applicants was in respect of the entire area and not to a particular place where the theft of diesel oil was being committed and that the diesel tank was neither entrusted to the applicants nor it was their specific responsibility to supervise the same. He added that investigation has been completed and the requisite sanction for prosecution may take sufficient time, therefore, bail may be allowed to the applicant. In support of his contentions he placed reliance on Muhammad Younus v. The State 2001 PCr.LJ 157 and Sabir Hussain v. State 1999 PCr.LJ 958.
6. Mr. M. Waheed Kazi, learned counsel for applicant Azmat Ali adopted the same arguments and submitted that there is no evidence of entrustment and misappropriation, therefore, section 409, P.P.C. would not apply. He relied on Muhammad Shafi v. D.I.G. of Police, Multan 1993 PCr.LJ 201, Amjad Khan v. State 1996 PCr.LJ 1469, Janas Khan v. State 1996 PCr.LJ 958 and Muhammad Yaqoob v. State 1994 PCr.LJ 1116.
7. Both the, learned counsel argued that Ibrahim Shah, who was standing near the tanker has also been granted bail by the trial Court, but on verification it was found that this was a misconceived contention as the trial Court has granted bail to one Muhammad Ibrahim Abro son of Muhammad Shaban, Sub-Inspector, Railway Shed whose interim bail was confirmed on 15-6-2001; he is not accused Muhammad Ibrahim who was standing near the truck and arrested.
8. Mr. Khursheed Hashmi. learned Deputy Attorney-General opposed the bail on the ground that this is an offence against society and colossal loss has been caused to the public property. He argued that there is constructive entrustment of the property and the offence is punishable with imprisonment for life, the accused, therefore, do not deserve bail at this stage. He relied on Imtiaz Ahmed v. state PLD 1997 SC 545, Tariq Bashir v. State PLD 1995 SC 34, Sikkandar A. Karim v. State PLD 1995 Kar. 73 and Gulzar Hussain Noon v. State 1992 PCr.LJ 628
9. The main thrust of the contentions raised by the learned counsel for applicants was that the prerequisite elements constituting the offence under section 409, P.P.C. such as entrustment of the property to the applicants and having dominion over the same are lacking, therefore, the offence may be treated as theft or attempt to commit theft, which does not fall within prohibitory clause of section 497, Cr.P.C. Mr. Umer Farooq Khan further submitted that in view of the law laid down by this Court in Muhammad Younus v. State 2001 PCr. LJ 157 the accused can be proceeded against for an offence under the law which provides lesser sentence. This authority, in fact, speaks of a case in which accused is charged under two different statutes or laws for an offence which are alike or similar in nature. The offence under section 5(2), Prevention of Corruption Act, 1947 and under section 409 are not alike or similar in nature and at this stage it will be only a presumptive finding that the offence falls under section 380, P.P.C. and not 409, P.P.C. Such a finding would involve deeper appreciation of the evidence which is to be refrained from .at the bail stage. The words, in any manner with regard to dominion used in section 409, P.P.C. have a broader scope and if the main accused is charged with such an offence the co-accused namely the applicants cannot claim bail on the ground that the main accused have been granted such concession. It may be, noted that the present applicants were apprehended on, the spot while the names of Ibrahim and Abdul Hameed were given by co-accused and they were not present at that time. Any way, it is too early to remark that the applicants had absolutely no dominion over the property.
10. There is no cavil to the contention that bail is not to be withheld as a punishment but then the principles laid down in Tariq. Bashir's case PLD 1995 SC 35 and in Sukkur Jail Break's case PLD 1997 SC 545 cannot, in any manner, be ignored. Even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C. the Court would be justified in declining bail to an accused if there existed a recognized exceptional circumstance. As observed in Sikandar Karim's case PLD 1995 Kar. 73 if the offence is against the society the refusal of bail will be a rule and grant an exception. Instantly, the applicants are charged with an offence punishable with imprisonment for life or 10 years and, prima facie, their act amounts to an offence against society. Besides, the applicants belong to police and it was their duty to prevent and detect crime rather than involve themselves in the alleged offence, therefore, in view of the rule laid down in Muhammad Arshad v. State 1996 SCMR 74 they do no deserve a concession. Discretion, as such, cannot be exercised in their favour at this stage.
11. The contention that grant of sanction for prosecution may take some time is not, by itself, enough for grant of bail. Mr. Hashmi rightly pointed that bail was declined in Gulzar Hussain's case 1992 PCr.LJ 628 in which the accused was, inter alia, charged with an offence punishable under section 5(2) of the Prevention of Corruption Act, 1947.
12. For the foregoing reasons I am not inclined to accept the bail plea at this stage. However, while dismissing the application it is: observed that if the sanction for prosecution is exorbitantly delayed or I the trial is not completed within six months the applicants may repeat application for bail on whatsoever grounds available to them.
N.H.Q./M-250/K Bail refused.