RAZA MUHAMMAD Versus State
ORDER
SALAHUDDIN PANHWAR, J.--- By this common order, I intend to dispose of above, captioned Bail Applications, in Crime No. 08 of 2016 registered at Police Station FIA Crime Circle, Hyderabad under sections 462-C and E and 109, P.P.C. and 5-11 of Prevention of Corruption Act, 1947.
2. The case of the prosecution in brief is that consequent upon raid conducted, report of experts and the written complaint thereon by Imdad Ali Shah Executive No.9046 Sub-Zonal Manager SSGCL Jamshoro Sub-Zone, it is revealed that accused Abid Hussain Gaho, Bashir Ahmed Laghari owner/beneficiary/proprietor of M/s. Shahbaz CNG Station situated near 132 KV Grid Station Sehwan Road Jamshoro, accused Syed Aijaz Shah Manager of the said CNG Station and Syed Shabir Shah employee of the said CNG station have been found involved in gas theft for industrial consumption through a clamp installed on SSGCL distribution line causing loss of Rs.18,55,58,313/- to exchequer. Thus accused Abid Hussain Gaho, Bashir Ahmed Laghari, Syed Aijaz Shah and Syed Shabbir Shah and others were booked in an offence punishable under sections 462-C, 462-E, 109, P.P.C.
3. Learned Counsel for applicant Raza Muhammad contends that except role of abetting, no iota of evidence is available against the applicant; applicant's name is not mentioned in FIR. He further submits that albeit prosecution possess the evidence of P.Ws from whom applicant received amount through easy paisa but such proof is not sufficient to establish that applicant received that amount as illegal gratification; during the tenure of incident applicant was not posted in the area where offence was committed; arrest of applicant is unlawful as applicant is having 19 grade and only Director General can issue direction for warrants; and has relied upon the following cases:-
1. Shahbaz Ali Malik v. The State (1999 PCr.LJ 2123)
2. Mirza Muhammad Zulfiqar v. The State (2000 SCMR 1072)
3. Abd-e-Ali Nafar v. The State (2004 YLR 254)
4. 2016 SCMR 18
5. Mumtaz Ali Jalbani v. The State (2012 YLR 2727)
6. Sadar Amin Farooqui v. Chairman NAB (C.P. No. 2833/13)
7. Sanjay Chandra v. Central Bureau of Investigation (2012 SCMR 1732)
8. Muhammad Tahir v. The State (2010 YLR 2244)
9. Anwar Saifullah Khan v. The State (2001 SCMR 1040)
10. Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166)
11. Muhammad Ashraf v. The State (2003 MLD 165)
12. Altaf Hussain v. The State (2007 PCr.LJ 1087)
13. Mehboob Ali v. The State PLD 1996 Lah. 454
14. 2015 YLR 69
15. 2003 PCr.LJ 473
16. 2012 SCMR 1685
17. 2014 PCr.LJ 1468
18. PLD 2003 Kar. 393.
4. Learned Counsel for applicants for applicant Aijaz Shah inter-alia contends that section 462(C) and (E) were inserted in P.P.C., which provides maximum sentence 10 years, whereas natural Gas Regulatory Authority Ordinance, 2000 is also in field, which provides 05 years sentence; special law prevails over the general law. He also refers to Section 30 of the Ordinance; applicant was Manager on CNG Station and thus he was not possessing the keys of room erected on gas pipelines; applicant approached under section 498, Cr.P.C before concerned Court but his application was dismissed and he was taken into custody; prosecution case is based on 16 witnesses, amongst them 12 relates to the company (complainant); applicant is not beneficiary; none has seen that applicant was tempering the gas pipeline; he has relied upon the following case law:-
1. Tariq Bashir v. The State (PLD 1995 SC 34)
2. Mohammad Dan Gul v. The State (2016 MLD 737)
3. Mustafa Ali v. The State (2014 PCr.LJ 1464)
4. Muhammad Younus v. The State (2001 PCr.LJ 157)
5. Zaheer Ahmad v. The State (1989 MLD 4612)
6. Akhtar Hussain Shah v. The State (1999 PCr.LJ 225)
5. Learned Counsel for complainant in Cr. Bail Application No.408 states that applicant Raza Muhammad was Deputy Chief Engineer (Maintenance), it was his duty to submit report with regard to maintenance of pipeline and supply to the CNG stations; prosecution has collected evidence with regard to amount received by applicant through Taamir and Wasila Bank; administration of CNG station illegally constructed a room over the walls of gas line. He has relied upon 2013 YLR 1320.
6. Learned Standing Counsel contends that applicants have given loss to the public exchequer, that offence is not an ordinary offence, hence applicants does not deserve concession of bail.
7. I have heard the respective sides and have also gone through the available record carefully. The applicant/accused Raza Muhammad insists his release mainly on ground of his being not named in the FIR and that of being not posted at the time of raid. There can be no denial to the well established principle of law that FIR is only meant to bring the law into motion hence mere non-mentioning of name in the FIR alone is never sufficient to earn grant of bail. I would insist that there are certain offences involvement wherein cannot be legally ascertained at time of detection of the offence and section 462-C and E, P.P.C., without any doubt, shall stand included in such category. Thus, non-mentioning of the name of the applicant/accused ipso facto shall not help him to insist the bail.
8. As regard the plea of alibi, it shall suffice to say that it is not an ordinary offence which would require personal appearance of the applicant/accused nor detection of tampering with pipelines can surely be the date of 'tampering' but the case of the prosecution is that of tampering with pipeline and continuity of theft of gas there from. Further record reflects that applicant was sole responsible to monitor that area thus, in my view, plea of alibi is not helping the applicant accused to claim the bail by referring and insisting the plea of alibi which, otherwise, is not applicable with case of the applicant/accused.
9. The material, so collected by the prosecution, prima facie establishes that the applicant/accused did possess a post of Deputy Chief Engineer (Maintenance), which otherwise was always requiring him to be vigilant so as to ensure stopping/removing or least complaining about any 'tampering with gas pipelines' within area under his territory but the record speaks otherwise. The prosecution has collected material which prima facie establishes receipt of 'money' by the applicant/accused for which initial burden was/is upon to show that it was 'lawful' because all the laws, relating to or revolving round the assets of public servant make it clear that failure of a public servant to account for disproportionate to his known income even exposes him for a distinct offence. The applicant/accused prima facie does not deny receipt of the money by him but disputes it by denying it to be 'unlawful' which (mere denial) cannot be accepted particularly when the law itself allows to draw an inference against the delinquent.
10. I would also add that matters of public servant/official is always to be taken rather seriously and would not be taken as that of an ordinary person because the public servant/official is always bound by his duties to prevent the offences and if he from his acts or omissions allows happening of the offence, not only commits the offence but breach of his official duties/obligations. The applicant/accused Raza Muhammad prima facie appears to be linked with the offence with which he is charged and has failed to bring his case within meaning of 'further inquiry' hence is not entitled for concession of bail.
11. Now, reverting to the bail plea of the applicant/accused Aijaz Shah, the perusal of the record shows that the applicant/accused is 'Manager' of the CNG station which by tampering with gas pipeline, was not only stealing the gas but was selling the same commercially. The applicant/accused has not denied or least disputed his status as 'Manager' nor has claimed to be ignorant about tampering with gas pipe line and use of theft gas at CNG station. The ordinary definition of 'Manager' i.e 'someone who is in charge of a business, department, etc' narrows the case of the applicant/accused for bail as 'in charge of CNG station' would prima facie be presumed to be in active knowledge and notice of sale of 'gas, being obtained by of tampering with gas pipeline'.
The plea of the offence to be falling within meaning of Ordinance or P.P.C cannot be undertaken at the bail stage as it shall amount to deeper appreciation of evidence which is not permissible at such stage. Reference may be made to the case Babar Ali v. Bashir Ahmed' (2007 SCMR "185) wherein it is held that:
"..... It is a settled principle that in granting bail or suspending the sentenced awarded to a convict the Court is not required to express opinion as to under what provision of law the convict would likely be found guilty or whether the case does not come within the scope of a particular section.
The applicant/accused Aijaz Shah also prima facie appears to be linked with the offence.
12. I would also add here that offences relating to 'Oil and Gas etc' be not treated as ordinary offences falling or non-falling within prohibitory clause but it should always be kept in view that it shall not only be an offence but shall also result in causing prejudice to the people for whom the transmission lines are laid. It be also kept in view that 'transmission pipe lines' are laid or even run from or over the public places therefore, a dare to tamper with such 'transmission pipe lines' cannot be imagined to be possible within minutes or hours therefore, both applicants/accused are prima facie linked with the offence.
13. In the last, I would also say that the Learned counsel for the applicant has relied upon plethora of cases, suffice to say that in criminal administration of justice each and every case is to be decided on its own facts and circumstances hence the case law relied upon is not applicable in this case. Reference can well be made to the case of Muhammad Faiz v. State 2015 SCMR 655 wherein it is held as:
7.....Even otherwise, the precedents in bail matters are of no help to a party, as it varies from case to case depending upon the facts of each case. The Court has to examine as to whether accused has made out a case for further inquiry or not.
These are the reasons for dismissal of both the above bail pleas which were rejected vide short order dated 29.7.2016.
JK/R-24/Sindh Bail refused.