2015 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through the captioned miscellaneous application, applicant Muhammad Ali son of Bahadur Khan has agitated the order dated 13-5-2014, passed by the Court of learned XII Judicial Magistrate, Karachi East, whereby manager of the Meezan Bank was directed not to allow applicant to withdraw amount from his account till further order of the Court.

2. Precisely, the facts mentioned in FIR are that complainant Muhammad Javed Khan lodged FIR bearing No. 84/2014, under section 392/34, P.P.C., at Police Station Soldier Bazar, stating that complainant is incharge of Pakistan Lockers MCB Employees Foundation, Ali Bhai Auditorium Building, Nishter Road, Karachi, where 1677 lockers have been established and out of which 1008 are in use while remaining are empty. Two security guards were performing their duties in office, out of them one for 24 hours, while other for 12 hours. On 6-4-2014, complainant was present at his house, and at about 0639 hours, guard Barkat Ali informed him through cell phone that an incident occurred in the lockers of the office. Complainant instantly reached at his office where security incharge Major Jahanzaib was already available along with his staff. Guard Barkat Ali informed that on 5-4-2014, he was available outside of the lockers, when at about 8-30 P.M. two persons wearing shalwar kameez jumped over the wall and kept arms on his temple and overpowered him and folded his mouth with strip. The culprits took key from him and opened the outer lock and took him inside. They made a call and two other persons also arrived there. The culprits tied his hands and feet and broke the locks and took out articles lying wherein and left the spot at Azan time. He reached at main gate by crawling where two passersby, untied him. In the meantime police reached at the spot. Complainant, security incharge Jahanzaib, his staff and police checked lockers and found that 30 large and 30 small lockers were broken, out of which 6 large and 2 small lockers were not in use and from 52 lockers articles were removed, but they had not in knowledge regarding the articles being removed, however, four bangles and one earring were lying there. He claimed that four armed persons over powered his security guard and committed theft from lockers, hence this FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in this case. He further submitted that there is no direct or indirect evidence available with the prosecution to implicate the applicant in commission of the alleged offence except the statement of co-accused and confessional statement of the applicant before the Investigating Officer. He further submitted that statement before the Investigating Officer is not admissible under Articles 37, 38 & 39 of Qanun-e-Shahadat. He further contended that applicant is businessman and has never been involved in any criminal case. He further submitted that on directions of this Court, the Meezan Bank Ltd, Barkat-e-Hydri Branch, Karachi, produced signed and stamped copy of the statement of the applicant's account No.0100947473, from 1-6-2013 to 30-4-2014, before this Court. He pointed out details of deposit of huge amounts in the account of the applicant w.e.f. 1-6-2013 to onward prior to the commission of the incident. He further contended that applicant was granted bail by the High Court vide order dated 22-7-2014. He also contended that the learned Magistrate has not issued notice to the applicant prior to the freezing of his account and mere on the application of the Investigating Officer, account was seized without passing any speaking order. He submitted that complainant has failed to mention the details of articles being removed from the lockers in FIR and usually people do not keep cash in their lockers. He lastly contended that the impugned order is against the norms of criminal justice which is liable to be set-aside. He relied upon 2011 SCMR 1686.

4. Learned counsel for the complainant vehemently opposed the contention raised by the learned counsel for the applicant and contended that the applicant during the course of interrogation had admitted his guilt before the Investigating Officer. He further submitted that at the time of arrest one shopper was recovered from the applicant which contained one golden necklace, one golden chain and cash Rs.100,

000. He further contended that applicant after selling the stolen articles, sent Rs.50,00,000 through online from Peshawar to Karachi, therefore, Investigating Officer had approached to concerned Judicial Magistrate to freeze the account of the applicant and learned Judicial Magistrate vide order dated 31-5-2014 directed the concerned bank not to allow the applicant to withdraw the amount from his account. He further contended that applicant has filed with mala fide intention, therefore, sane is liable to be dismissed.

5. Learned APG supported the arguments advanced by the learned counsel for the complainant.

6. Perusal of the record and consideration of the arguments advanced by the parties reflect that applicant was arrested in the subject case, however, he was enlarged on bail by this Court vide order dated 22-7-2014. During course of investigation, Investigating Officer moved application to the learned XII Judicial Magistrate, Karachi East, and the learned Magistrate directed the Manager concerned bank to stop the withdrawal of amount by the applicant vide order dated 31-5-2014, which is reproduced as under:-- "Perused application which is allowed and concerned bank Manager is directed not to allow withdrawal of said amount from the account of accused till further orders by Court as I.O. has shown alleged amount to be the amount taken away by the accused during commission of offence"

7. It is also transpired that applicant was not put to identification parade after his arrest before the concerned Magistrate to strengthen the case of prosecution as eye-witness security guard Barkat Ali was very much available in complainant's office. Prosecution has failed to collect any iota of evidence in support of its claim that the details of the articles stolen from the lockers by the applicant which were sold out and same money was deposited in his account through online from the Bank of Peshawar to Karachi. It is significant to mention that, on the directions of this Court a signed and stamped copy of the statement of account of accused has been placed on the record showing the deposit of debit and credit of amount from 1-6-2013 till 30-4-2014. The detail of the amount deposited in the account of the applicant w.e.f. 1-6-2013 till 5-4-2014, is reproduced as under:-- Sr.No. Date Amount 1. 12-6-2013 Rs. 340,000 2. 5-7-2013 Rs.1,000,000 3. 5-7-2013 Rs.1,500,000 4. 22-8-2013 Rs.2,500,000 5. 19-9-2013 Rs. 500,000 6. 24-9-2014 Rs. 300,000 7. 25-9-2013 Rs. 300,000 8. 1-10-2013 Rs. 400,000 9. 7-12-2013 Rs. 100,000 10. 9-12-2013 Rs. 120,000 11. 6-1-2014 Rs. 600,000 12. 9-1-2014 Rs. 200,000 13. 3-2-2014 Rs. 500,000 14. 10-3-2014 Rs.100,000 15. 12-3-2014 Rs. 100,000 16. 2-4-2014 Rs.150,000

8. From the above detail of the amounts deposited in the account of the applicant, much earlier from the date of the incident i.e. 6-4-2014, supports the contention of the learned counsel for the applicant that he is a businessman and already maintaining the transaction of huge amounts through his above account to meet the deals of the business. The learned Judicial Magistrate while passing the impugned order neither issued any notice to the applicant nor passed a speaking order by mentioning valid reasons or justification to freeze the account of the applicant.

9. From the detailed discussion of the above facts and circumstances, it has transpired that the entire prosecution case is built on the alleged confession of the applicant made before the Investigating Officer by the applicant during course of interrogation, which is not admissible under Article 39 of Qanun-e-Shahadat. Prosecution has failed to place any sound and direct evidence on record to establish that the alleged transaction of amount from Peshawar to Karachi, was the sale price of the looted articles from the lockers.

10. Consequently, I am of the considered view that the impugned order dated 31-5-2014, being void and illegal is not sustainable in law, hence, is hereby recalled and set aside. Accordingly, instant criminal miscellaneous application stands allowed and Manager Meezan Bank Ltd, Barkat-e-Hydri Branch, Karachi is directed to allow the applicant to operate his account as per rules. HBT/M-196/Sindh Application allowed.