2013 PLP 2067 (YLR)

ABDUL RASOOL MEMON, J.

The applicant Qalandar Bux booked in Crime No.80 of 2012 under sections 420, 468, 220, 225-A, 446, 471, 477 and 34, P.P.C. Police Station Civil Lines, Jacobabad applied for bail before arrest before the trial court but his bail plea was declined vide impugned order dated 31-12-2012 by the Incharge Sessions Judge, Jacobabad, however, he was admitted to interim pre-arrest bail vide order dated 11-2-2013 by this court.

2. Complainant Saeed Ahmed, Superintendent Sessions Court Jacobabad has recorded the F.I.R. stating therein that accused Leemon son of Tagio Rind was facing trial in Sessions Case No.189 of 2001, Crime No.58 of 2006 under section 302, P.P.C., Police Station Saddar Jacobabad before Sessions Court Jacobabad while accused Noor Muhammad son of Amir Bux Khoso was facing trial in Sessions Case No.118 of 2011 Crime No.1 of 2002 under section 302, P.P.C., Police Station Dil Murad before Ist Additional Sessions Court, Jacaobabad. Accused Akram son of Karam Kehar was facing trial in Sessions Case No.156 of 2012 Crime No.2 of 2002 under section 302, P.P.C. Police Station Abad before Ist Additional Sessions Judge, Jacobabad as well as in Case No.24 of 2012, Crime No.4 of 2012 under section 13-D Arms Ordinance, Police Station Abad before Ist Civil Judge and Judicial Magistrate, Jacobabad. Accused Leemon Rind withfake Order No.1266 dated 25-9-2012 of IInd Additional Sessions Judge, Jacobabad, accused Noor Muhammad Khoso with fake Order No.3296 dated 24-10-2012 of Ist Additional Sessions Judge, Jacobabad, accused Akram Kehar with fake release writ Orders Nos.1227 dated 20-9-2012 and 1320 dated 4-10-2012 of IInd Additional Sessions Judge, Jacobabad were released from Central Prison-I, Sukkur. Accused Abdul Qayoom Golo Clerk and others allegedly had prepared above fake release writs at unknown time and accused Abdul Qayoom Golo had illegally used the service card of peon Naseer Dasti. Accused Abdul Qayoom Golo and staff of Jail namely Qalandar Bux, Deputy Superintendent Central Prison-I Sukkur, Irfan Pirzada Clerk Central Prison-I, Sukkur, Amanullah Bhatti, O-G. Ward, Central Prison-I, Sukkur and P.C. Amir Ali Brohi were also associated with them and had illegally got released above named accused from central Prison-I Sukkur by misusing their powers and preparing fake release writs. It is further stated in the F.I.R. that on the directions of the Hon'ble High Court inquiry was held by the Sessions Judge, Jacobabad in which accused Abdul Qayoom Golo, Qalander Bux Shaikh, Irfan Pirzada, Amanullah Bhatti, P.C. Amir Ahmed and others were proved to be involved. It is further alleged that the present applicant Qalandar Bux Shaikh, Deputy Superintendent in order to save himself did register the case being Crime No.245 of 2012 at Police Station Rohri. On directions of Sessions Judge, however, the complainant lodged this F.I.R. at the Police Station, Civil Lines, Jacobabad.

3. I have heard Mr. Muhammad Akbar Khan, learned counsel for the applicant and Mr. Imtiaz Ali Jalbani, A.P.G. on behalf of State.

4. Learned counsel for the applicant has argued that F.I.R. is delayed and prior to it, two F.I.Rs. No.245 of 2012 and 248 of 2012 at Police Station Rohri District Sukkur were lodged by the present applicant in compliance of orders of his superiors in respect of release of the accused on the basis of fake/forged writs; that the fake release writs have allegedly been prepared by Abdul Qayoom Golo, Reader of Court of IInd Additional Sessions Judge and the present applicant after observing the formalities prescribed by law, released the accused; that the fraud whatsoever has been committed by the Judicial Courts Staff/Officials who have been arrested after lodging of the F.I.Rs. recorded by the present applicant; that there are two versions of the cases, one recorded by the present applicant in his F.I.Rs. No.245 of 2012 and 248 of 2012 of Police Station Rohri, District Sukkur wherein the present applicant is complainant while the other recorded by the Superintendent District and Sessions Court Jacobabad being Crime No.80 of 2012 (the present F.I.R.) against the applicant wherein the present applicant has also been shown as one of the accused and which version is correct, is yet to be seen at trial; that the act of negligence can only be attributed to the present applicant for which he is already facing disciplinary proceedings; that the alleged offence does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. and grant of bail in such cases is always held as a rule; that the applicant is public servant serving in this Department since 28 years and he will be humiliated if arrested in this crime when hardly any connecting evidence is available. In support of his contention he has placed reliance on the cases of Muhammad Moosa others v. The State (SBLR 2008 Sindh 839), SAEED AHMED v. THE STATE (1996 SCMR 1132), KARIM HAIDER and others v. THE STATE (1986 SCMR 938), LAL MUHAMMAD KALHORO and others v THE STATE (2007 SCMR 843), Maulana ABDUL AZIZ v. THE STATE (2009 SCMR 1210), SAMEEN JAN (NAIB TEHSILDAR) and another v THE STATE and another (PLD 2011 Supreme Court 509), ANWAR SAIFULLAH KHAN THE STATE and 3 others (2001 SCMR 1040), MUHAMMAD ASHRAF v. THE STATE (2003 MLD 165) and FIRDAUS AHMAD KHAN v. THE STATE (2004 MLD 208).

5. Learned A.P.-G. on behalf of State has argued that the present applicant was serving as Deputy Superintendent Jail, Sukkur wherefrom the accused namely Lemon Rind, Noor Muhammad and Akram were released under fake writs; that for accused Noor Muhammad it has come on record that there was difference in between his father name and different name of the court which remanded and issued writs while the other accused Akram who was facing trial in two cases and there was difference in the name of court giving remand and issuing the release writ and the applicant failed and did not verify the particulars of accused Akram from the court of Civil Judge and IInd Additional District Judge or even from Ist Additional District Judge where his case was pending, while for accused Leemon son of Tagio it has come on record that there was difference in signature of the presiding officer on release writ and confirmation letter. He has contended that under rule 127 of Pakistan Prison. Rules before acting upon release orders, the Deputy Superintendent is required to carefully scrutinize the seal of the court and signature of the Magistrate and in case of any doubt he should make a reference to the concerned court before such order is carried out. He has contended that the applicant who was holding public office of Deputy Superintendent was entrusted with the duty that no person be released illegally or unlawfully but: he without verifying its genuineness has carried out the fake orders and released the accused who were involved in murder cases. Moreover, the co-accused Abdul Qayoom in his statement before the Inquiry Officer stated that he in collusion with the jail staff after preparing forged release writ succeeded to get release of the accused. He has further contended that sufficient material is available on record regarding involvement of applicant/accused for release of under trial prisoners who were involved in heinous crimes. He further contended that although case of the present applicant does not fall within the ambit of Prohibitory Clause of section 497, Cr.P.C. yet it is an inflexible rule. He next contended that the applicant has failed to show that registration of the F.I.R. against him was tainted with mala fide or ulterior motive. In support of his contention he has placed reliance on the case of IMTIAZ AHMED and another v. THE STATE (PLD 1997 Supreme Court 545), MUHAMMAD SIDDIQ AWAN v. THE STATE (2003 PCr.LJ 890), Bhooro Khan and another The State (2003 MLD 125) and SIKANDAR JANWARI v. THE STATE (2002 MLD 113).

6. I have given careful consideration to the arguments of learned counsel for the parties and have gone through the relevant record. The name of the present applicant is mentioned in the F.I.R. and there is sufficient material available on record in shape of 161 Cr.P.C. statements of witnesses namely Nasir Muhammad, Shahid Hussain Chajro Superintendent Central Prison-I Sukkur, statement of Abdul Qayoom Golo, Irfan Ahmed, Clerk also the statement of the present applicant and aforesaid witness recorded in this case before the Inquiry Officer. It is an admitted fact on record that the present applicant was serving as Deputy Superintendent Jail Central Prison-I, Sukkur. It is also brought on record that three under trial prisoners who were, involved in heinous crimes including murder cases earned their release through applicant who did not effectively verified their particulars and authenticity of release writs.

7. As this is application for grant of bail before arrest, therefore, I refrain myself from dilating upon the merits of the case at this stage.

8. For grant of pre-arrest bail the applicant is required to satisfy the court regarding his involvement on account of mala fide and ulterior motives which under the law are to be specifically attributed. From reading of grounds of the Bail Application although mala fides have been pleaded, but not attributed to the complainant or any of witnesses so also to the police. Nothing has been placed on record to deduce that the case is outcome of enmity or that the complainant or any prosecution witness is biased against the present applicant/accused. Merely because the offence is not punishable with death or imprisonment for life or 10 years, is no ground for grant of pre-arrest bail in each and every case. Reliance is placed on the case of Imtiaz Ahmed and another v. The State (supra) which is case of leave to appeal against bail refusal order of High Court, wherein leave to appeal was refused to the Jail Officers posted at Central Prison-I, Sukkur with the following observation:-- "The jail breaking resulting into escaping of the persons involved in heinous Crimes, which is detrimental to the society as a whole, is a crime of the nature which falls under the above second category and, therefore, the Courts will be justified in appropriate cases not to exercise discretion in favour of public officers, who, allegedly aided or abetted, in he commission of such crimes and who are also charged with an offence under section 5(2) of Act II of 1947 or under any other provision of the Pakistan Penal Code or the other law which offence is non-bailable but carried` sentence less than 10 years R.I."

9. In the instant case there are serious allegations against the present applicant not only of negligence but it is also alleged that the present applicant in furtherance of common intention/object with co-accused has acted upon false release writ whereby the accused involve in serious cases have succeeded to get themselves release and escaped from the Central prison and it amounts an offence against society. In the circumstances discussed above, I am of the opinion that the applicant Qalandar Bux has not been able to make out the case of bail before arrest, therefore, in such circumstances order dated 11-2-2011 for grant of interim pre-arrest bail is recalled. He is directed to surrender before the learned trial Court for being taken into custody. HBT/Q-3/K Bail refused.