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Petitioner: MUHAMMAD ASLAM VS Respondent: THE STATEHonorable Justice Muhammad Ashraf LeghariS. Sarfraz Ahmad,S. Mehmood Alam Rizvi,Miss Masooda Siraj
2002 Y L R 3591
2002 Y L R 3591
[Karachi]
Before Muhammad Ashraf Leghari, J
MUHAMMAD ASLAM‑‑‑Applicant
Versus
THE STATE‑‑‑Complainant
Criminal Bail No.53 of 2002, decided on 2nd April, 2002.
Criminal Procedure Code (V of 1898)‑‑‑
-----S.498----Penal Code (XLV of 1860), S.380‑‑ Pre‑arrest bail, grant of‑‑‑Accused alongwith others was posted as Security Guard at the residence of Judge, Accountability Court and on dates when theft in the said residence was committed accused absented himself from duty without any intimation which gave rise to suspicion in the mind of complainant‑‑ Complainant and police had no enmity with the accused‑‑‑Stolen property was yet to be recovered‑‑‑In case the accused was granted pre‑arrest bail same would not be recovered and normal procedure would be hampered and grant of bail would cause hurdle in achieving cause of administration of justice‑‑ Pre‑arrest bail being a matter of discretion of Court, same was to be exercised fairly and justifiably in exceptional cases where arrest of accused was motivated and harassment was apparent on record‑‑‑Offence against accused though was not covered by prohibitory clause of S.497(1). Cr. P. C. but case against him was of extraordinary nature as he being a guard appointed for protection of properties and lives of the complainant, was directly involved in the case‑‑‑Courts should not be obvious of the situation prevailing in the country where Police functionaries had joined hands with hardened criminals for monetary considerations and guardians and protectors of rights of their masters had turned decoits and thieves ‑‑‑Ordinary mode and procedure of investigation of police, could not tie thwarted by granting pre‑arrest bail in such matters‑‑‑Pre‑arrest bail application was dismissed in circumstances.
Kamran alias Ghulam Rasool alias Kaloo. v. State PLD 1997 Kar. 484; The State v. Aziz alias Abdul Aziz PLD 1985 Kar.27: Meeran Bux v. The State and another PLD 1989 SC 347: Zia ul Hassan v. The State PLD 1984 SC 192; Sarfraz Ahmad and 7 others v. The State 1992 PCr.LJ 2346: Abdul Ghafoor and another v. The State PLD 1988 Kar. 545 and Murad Khan v. Fazl‑e -Subhan and another PLD 1983 SC 82 ref.
S. Sarfraz Ahmad for Applicant.
Miss Masooda Siraj for the State.
S. Mehmood Alam Rizvi for the Complainant.
Date of hearing: 2nd April, 2002.
JUDGMENT
Applicant Muhammad Aslam has applied for his pre‑arrest bail in Crime No. 158 of 2001 registered at Police Station Boat Basin on 15‑11‑2001 under section 380 P.P.C.
Briefly stated the facts of the case are that one Rizwan Ali Dodani lodged first information report which was recorded on the basis of his written complaint. It is stated in the application that he, his father namely Mr. Ali Akbar M. Dodani Judge Accountability Court, alongwith their family have been provided police guard for security of their properties and lives. Despite the presence of guards for round the clock, theft of cash of Rs.25,000 and jewellery worth of Rs.2,50,000 had been committed between 13‑10‑2001 to 2‑11‑2001. He displayed his suspicion against the police guard Muhammad Aslam as he had absented himself from duty without intimation after the complainant party got the knowledge of theft.
It is argued by the learned counsel that the F.I.R. is delayed by about 32 days. The applicant had never remained on duty at night time. The arrest of applicant would be mala fide and he shall be tortured and humiliated by the police. It is pleaded that the suspicion has always been resolved in favour of accused. The offence for which accused has been, charged is not covered by prohibitory clause of section 497 (1) Cr.P.C. and the grant of bail in such matters is a rule. Nothing incriminating had been recovered from him although he had attended the police station after getting his interim bail. Police has not collected any piece of evidence connecting the applicant with the commission of alleged offence. Reliance is placed upon the cases of Kamran alias Ghulam Rasool alias Kaloo. v. State PLD 1997 Kar.484. The State v. Aziz alias Abdul Aziz PLD 1985 Karachi, 27, Meeran Bux v. The State and another PLD 1989 SC 347 and Zia ul Hassan v. The State PLD 1984 SC 192.
Mr. S. Mehmood Alam Rizvi learned counsel appearing for complainant argued that complainant and the police has no enmity with the applicant. He was appointed and posted at the residence of complainant for safe guarding the properties and lives of the family of Judge. Accountability Court but he alongwith others failed to perform their duties properly. The rest of the guards on coming to know about the theft never absented themselves but the present applicant absconded. It is submitted that the applicant after grant of interim pre‑arrest bail failed to cooperate with the police and investigation. There is absolutely no mala fide on the part of the complainant or the police. On the contrary huge amount of complainant has been stolen which is yet to be recovered and the applicant is to be interrogated. If the applicant is granted pre‑arrest bail, the stolen property would not be, recovered and the normal procedure of investigation would be hampered. Reliance is placed upon the cases of Sarfraz Ahmad and 7 others v. The State 1992 P.Cr.L.J 2346 and Abdul Ghafoor and another v. The State PLD 1988 Karachi 545.
Miss. Masooda Siraj learned counsel appearing for the State has opposed bail plea of applicant and adopted the arguments of learned counsel for complainant.
The record shows that some of the guards including the present applicant were posted at the residence of Accountability Judge and were assigned duty to safe‑guard the property and lives of inmates of house. Theft of cash of Rs.25,000 and jewellery worth Rs.2,50,000 was committed in between 13‑10‑2001 to 2‑11‑2001. The complainant on coming to know that jewellery was not available in the locker lodged report. The police took up investigation and the present applicant absented himself from duty without any intimation. The complainant and. the police has no enmity with the applicant. It is the conduct of the appellant which gave rise to the suspicion in the mind of the complainant. The cash amount and the jewellery is yet to be recovered. In case the applicant is granted pre‑arrest bail the stolen property would not be recovered and the normal procedure would not be recovered and the hampered: The grant of pre‑arrest bail in such matters would cause hurdles in achieving the cause of administration of justice. The pre‑arrest bail is a discretion and is to be exercised fairly and justifiably in exceptional cases, where the arrest is motivated and harassment is apparent on the record. No doubt the offence is not covered by prohibitory clause of section 497(1) Cr.P.C. but this case is of pecuniary and extraordinary nature as the guards appointed for protection of properties and lives of the complainant are directly involved in the matter. The guardians and protectors of the rights of their masters have turned decoits and thieves. The Courts should not be oblivious of the present situation prevailing in this part of country where the police functionaries have joined hands with hardened criminals for monetary considerations. This case is of exceptional nature which cannot be taken lightly. The parameters for grant of pre‑arrest bail had been laid down by the Honourable Supreme Court of Pakistan in Murad Khan's case reported in Murad Khan v. Fazl‑e‑Subhan and another PLD 1983 SC 82 and the instant case does not satisfy the criteria for grant of pre arrest bail laid down in afore‑mentioned case. The ordinary mode and the procedure of investigation by the police cannot be thwarted by granted pre‑arrest bail in such matters.
For the reasons stated above, the pre‑arrest bail applications stands dismissed.
H.B.T./M‑381/K Pre‑arrest bail application dismissed.