2022 PLP 185 (YLR)

MRS. RASHIDA ASAD, J.

Muhammad Hussain, applicant has been booked in FIR No. 66 of 2019, registered at Police Station SSGC, under sections 15/ 24 of Gas (Theft Control and Recovery) Act, 2016.

2. Brief facts of the prosecution case are that on 25.10.2019, complainant Hafeezullah, Assistant Manager, SSGC lodged FIR stating therein that on the said date, he along with his subordinate staff and police carried out an inspection of "Al-junaid Sweets and Bakers", located in Aaso Goth, Bakra Piri Road, Malir, Karachi, and found that from auxiliary service line of SSGC, natural gas was being theft through a rubber pipe and was using for making sweets and bakery items. Illegal connection was disconnected by the technical staff of SSGC and complainant secured rubber pipe, stoves etc. however, two stoves of 24 nozzles could not be secured as the same were immovable. Such inspection note was prepared at the spot. Accused succeeded in fleeing away from the bakery.

3. The learned counsel for the applicant/accused his contended that the accused is innocent and has falsely been implicated in this case by the complainant party due to malice and ulterior motive; that prior to this case, an FIR No. 29/ 2019 was lodged against the son of the applicant on same set of allegations, who has been granted bail by the learned Sessions Judge, Malir; that there is delay of 24 hours in lodging of the FIR; that no eye-witness of the incident has been cited in the FIR; that even no compliance of section 103, Cr.P.C. has been made by the complainant; that offence with which the applicant is charged is punishable for five years, as a lesser punishment, does not fall within the prohibitory clause of section 497, Cr.P.C.; therefore, accused is entitled for the confirmation of the bail. In support of his contentions, the learned counsel has placed his reliance on the case of 2016 SCMR 1282.

4. On the other hand, learned Special Prosecutor SSGC has vehemently opposed this application on the ground that the accused is involved in the offence of theft of gas which is a pilferage of public property. He has submitted that case FIR No.29/2019 is still pending trial before the learned trial Court wherein the son of the applicant Muhammad Shahzaib was granted bail upon depositing of Rs.200,000/- in favour of SSGC being part payment of stolen gas, which quantum was calculated as Rs.800,000/- and it shows that again illegal gas connection was taken by the applicant, who has not denied ownership of the business of the Bakery, therefore, the applicant is not entitled to extra-ordinary relief of pre-arrest bail as the accused has failed to prove any malice or ulterior motive on the part of complainant or police to implicate him falsely in this case, even otherwise prosecution has sufficient evidence against the accused to connect him with the commission of alleged offence. In support of his con-tentions, the learned Special Prosecutor has placed his reliance on the case of 2019 SCMR 1457.

5. I have considered the arguments advanced by the learned counsel for the accused and learned Special Prosecutor SSGC as well as perused the material available on record.

6. It would be pertinent to mention here that grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives and such relief is not to be used as a substitute or as an alternative for post-arrest bail. It is further observed that bail before arrest cannot be granted unless the person seeking establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt and in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him.

7. Reverting to the facts of this case, it appears that on 25.10.2019, Hafeezullah, Assistant Manager, SSGC along with staff members detected direct gas supply from the auxiliary service line through rubber pipe to the Al-Junaid Sweets and Bakers being run by the applicant. The ownership of such business has not been denied by the accused in his bail application. The technical staff of the SSGC disconnected the illegal supply of the gas from said service line and taken into possession two stoves having different numbers of nozzles, whereas, two stoves could not be secured as the same were duly fixed.

8. It is further observed that when an offence besides being punishable for imprisonment is also punishable alternatively with fine, then the accused shall be entitled to bail as of right because if at the trial he is sentenced with fine only, then his period as under trial prisoner, due to refusal of bail, shall amount to a case of double jeopardy and, similarly, while dealing with such like cases, the refusal of bail would also be in contravention of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, which embodies the provisions of the maxim nemo debet bis vexari pro eadem causa (No person should be twice disturbed for the same cause) as well as section 403 of the Cr.P.C. But the principle of bail as of right in the cases providing alternative punishment of fine does not attract to the case of present accused, for the reason that the punishment of fine for the offence under section 15 of the Act is not alternative sentence but with rigorous imprisonment, which may extend to ten years but shall not be less than five years.

9. As far the argument of learned counsel for the accused that in view of the lesser punishment, provided for the alleged offence it does not fall within the prohibitory clause of section 497, Cr.P.C., suffice it to say that grant of bail in such cases is not a right of an accused but a concession. It is further observed that prior to filing of the instant FIR, an FIR bearing No.29/2019 under sections 15/17/24 of the Gas (Theft Control and Recovery) Act, 2016 has been registered wherein the son of the applicant was involved in case of theft of gas allegedly using in running of same Bakery/ business. It is observed that even after removal of illegal connection, there is nothing available on record to show that the applicant had applied for a legal gas connection. The learned counsel for the applicant attempted to argue that the plot number has been wrongly mentioned, however, he did not deny that the Bakery in the name and style of "Al-junaid Sweets and Bakers" is not running by the applicant and same name is mentioned in both FIRs. As far as, delay in lodging of the FIR is concerned, the delay by itself is not sufficient to grant bail unless the same is supported by other circumstances. Reliance is placed upon the case reported as Mazhar Iqbal v. The State and others (2010 SCMR 1171), wherein the Honourable Supreme Court has held as under: "No doubt, there is delay in lodging the FIR but the complainant has tried to explain such delay. However, the delay by itself is not sufficient to grant of bail unless the same is supported by other circumstances."

10. Admittedly, the energy crises is one of the long-standing and leading issue confronting Pakistan which is now hitting to its peak and posing serious threat to country's feeble economy. Thus, the crime allegedly committed by the applicant may be deemed an offence against the society.

11. Statements of witnesses, functionaries of the State with no animus or malice, duly corroborated by the material secured from the spot, prima facie, suggest that the prosecution has sufficient evidence against the accused to connect him with commission of alleged offence. The counsel for applicant has not been able to point out any special feature of the case entitling accused to grant of extra-ordinary concession of pre-arrest bail. Pre-requisites for such concession i.e. malice and ulterior motive, either on the part of complainant or the police are missing in the case. The case-law cited by the counsel of accused being on different footings is not applicable in the case of accused. Accordingly, this application is dismissed. The interim bail granted to applicant, vide order dated 17.12.2019, stands recalled.

12. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits. SA/M-179/Sindh Bail declined.