2001 PLP 285 (YLR)

Athar Iqbal Shaikh for Applicants. Muhammad Iqbal Memon for Addl A.‑G. for the State. The applicants are booked for an offence under sections 454, 381 and 34, P.P.C. read with section 14, Offence Against Property (Enforcement of Hudood) Ordinance, 1979, originated out of F.I.R. No. 130 of 2000 Police Station, Rohri. Complainant Nazeer Ahmed who is storekeeper of District Health Hospital Rohri lodged first information report with Police Station Rohri, stating therein that 104 cartons of vegetable oil tins were stored in kitchen and the Room No.2. Abdul Majeed and Shahbaz Maseeh were employed to keep the guard over the store. They used to check the seals of store. On 9‑12‑2000, the complainant alongwith Dr. Mazhar Ali Khamisani, Altaf Ahmed Abbasi duty Accountant Supervisor came to Rohri Hostel, in connection with a inspection being conducted by team which had arrived from Islamabad. The complainant and the other officers visited the hospital in order to make some arrangement regarding the stay of team which had come for the inspection. At that time, they found the seals broken and 39 tins of vegetable oil cartons were missing from the kitchen and 65 cartons were missing from Room No.2. The interrogation was made from ‑guards. It is alleged that they confessed their guilt before the complainant, who narrated the aforesaid story to A.D.H.O Dr. Abdul Karim. The Doctor demanded such letter in writing from him. The complainant submitted such letter in writing before A.D.H.O., who made enquiry on the next day and the accused is said to have confessed that they had stolen 104 vegetable oil cartons and sold the vegetable oil to Javid; Muhammad Shareef, Maeesh Kumar, Tofeeq Ahmed and Soheel Ahmed for the value of Rs.600 each. Such letter was given by D.H.O. for registration of F.I.R. The F.I.R. was registered against the present applicants on the basis of said letter. It is contended by the learned counsel that the complainant is a storekeeper and the said vegetable oil tins were under his control. The cartons of vegetable oil tins were kept in a store which was locked and the keys were available with the storekeeper. The guards had nothing to do with the use of cartons of vegetable oil. It is contended by the learned counsel that when the team had come to visit and audit the store then, the storekeeper in collusion with some officers have got this F.I.R. registered in order to shift the burden upon poor guards. It is submitted that the guards have nothing to do with the material kept in store. The empty tins have been recovered from the possession of some shopkeepers. Nothing incriminating has been recovered from the possession of two applicants. It is pleaded that the F.I.R. is delayed by about nine days after the detection of alleged theft. The time of theft as mentioned in the F.I.R. may be before 9‑12‑2000. The offences under sections 380, 381 and 14 of Offence Against Property (Enforcement of Hudood) Ordinance, 1979, are not covered by prohibitory clause of section 497, Cr.P.C., whereas section 454, Cr.P.C. is not attracted in this case as no offence for house trespass or house breaking has taken place. It is submitted that the extra -judicial confession of the accused before the complainant or the other officers is of no consequence as the complainant and some of the officers were themselves responsible for the alleged theft, if any. Mr. Muhammad Iqbal Memon, learned counsel appearing for the State has opposed the bail plea of accused on the ground that the empty tins have been recovered from some of the shopkeepers to whom the oil was sold by the applicants. The perusal of police papers shows that the cartons of vegetable oil were seen missing on the day when the team had come from Islamabad to conduct an inspection. The storekeeper must be incharge of the material stored in the alleged kitchen and a room situated in Taluka Hospital at Rohri. Nothing incriminating has been recovered from the possession of applicants except the cash which has no bearing in the case as the currency notes had no special mark to identity. The alleged extra judicial confession which is made before the complainant and the officers of no consequence. The offence under sections 380 and 381, P.P.C. or 14 Hudood Ordinance are not covered by prohibitory clause of section 497(1), Cr.P.C. The ingredients of section 454, P.P.C. have not been attracted in the instant case as no house trespass or house break has taken place. The applicants are in custody for more than three months and the case is not yet proceeded. It is pointed out that the Court is still lying vacant. It is yet to be established as to whether the vegetable oil was under the control of guards or the storekeeper. In such situation, at present there appear no reasonable grounds to believe that the accused are guilty for an offence falling under the prohibitory clause of section 497(1), Cr.P.C. The accused are granted bail in the sum of Rs.50,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q/A‑172/K Bail allowed.