2012 P Cr (PLP)

SALMAN HAMID, J.

Facts deducible from the file are that on 11-4-2011 circa 1650 hours Shahid Nisar, son of Nisar Ahmed, (the Complainant), a resident of Phase VII, DHA, Karachi, submitted an application for protection at Police Station Gizri inasmuch as that on 10-4-2011 at 1720 hours he received on his mobile number 0333-2112983 calls from mobile phone number 0324-2657466 and 0303-5204766 from the applicant who demanded Rs. 500,000 failing payment he (Complainant) was to face dire consequences as the applicant knew the place of his abode and to school his children were going to. Resultantly, police arranged a raiding party with tainted currency notes of Rs.1,000 denomination each amounting to Rs.15,000 for payment to the applicant and for such purpose as per the direction of the applicant (given to Abid Khalid Perwez, the servant of the complainant) they reached the assigned place. The servant of the complainant at the given place gave the tainted currency notes to the applicant and his other accomplice Amir Sultan, son of Sultan Ahmed at which time the applicant took out his pistol and demand the servant to remain seated in the car in which he came. At such time an unregistered black Honda Civic came and upon noticing the police personnel who came out to get them the car sped away but the two culprits, including the applicant were arrested. From their search, brown envelope containing amount of Rs.15,000 was recovered from the applicant, together with a mobile phone and five SIMs and a list containing various mobile numbers. Unlicensed pistol was also recovered. From Amir Sultan a mobile and some cash was recovered. F.I.R. No.120 of 2011 under section 386/34, P.P.C. read with section 7 of ATA 1997 at Police Station Gizri was lodged in respect of the offence. In the first instance, the applicant moved bail application in Special Case No.37 of 2011 before the Anti-Terrorism Court No.II, Karachi. Upon dismissal of the bail application on 20-7-2011, present Bail Application was preferred. It was argued by the learned counsel that the applicant has been framed in the case; that per memorandum of arrest recovery of SIMs has been shown but till now it was not established, even remotely, that calls were made by the applicant to the complainant from such sims. It was also argued that Investigating Officer has shown a Cell No.0332-2179213 which actually was the number of the servant of the complainant and that the alleged recovery of Rs. 15,000 that was shown nowhere depict their specific numerical despite the allegation that the raid was arranged. It was urged that under the circumstances the case of the applicant falls within the ambit of subsection (2) of section 497, Criminal Procedure Code, and require further inquiry. Resisting the bail application, learned A.P.-G. for the State, argued that there was no enmity between the complainant, the police and the applicant and, therefore, there was no occasion for them to implicate the applicant in the above crime. It was also argued that the cases of extortion of money from the innocent people is on the rise and this being one of such cases, this court should view the matter with concern. It was mentioned that no case for bail was made out by the applicant in that in 161, Cr.P.C. Statements, the complainant and his servant have fully implicated the applicant in commission of the crime and that the name of the applicant is also available in the F.I.R. We have heard arguments of the learned counsel and perused the record. It would be evident to note that the complainant mentioned that he received calls from two mobile phones from the applicant on 10-4-2011 who demanded Rs.500,000 and in failing to make such payment threats of dire consequence were extended. In his 161, Cr.P.C. statement the complainant came forth verbatim as in his complaint, save that it was added that he gave tainted currency notes to his servant. Mention of this part of the statement was missing in the F.I.R. It is also astonishing to note that though amount of Rs. 15,000 was pre-arranged, conspicuously the numerical of the currency notes were not noted enable the complainant or the police to connect the applicant with the same in the event of the recovery, which in the present case stated to have been made from him (Applicant). It is also noteworthy to mention that in the 161, Cr.P.C. statement, the servant of the complainant stated that applicant quite often use to make calls to the complainant and use to demand money from the complainant and use to threat him of dire consequences. This narration of the statement shows that the complainant was receiving calls from the applicant on a regular basis or in any event such were more than on one occasion. However such state of affairs was neither patent from the contents of the F.I.R. nor from the statement of the complainant. It was also mentioned in his 161 statement by the servant of the complainant that he handed over the amount of Rs.15,000 to the applicant but again it is not mentioned in 161, Cr.P.C. Statements as to what were the numerical on such currency notes or denomination thereof. It is also clear that though there was no mention in the F.I.R. of recovery of. SIMs and a list containing mobile numbers, such was mentioned in the 161, Cr.P.C. statement. It came on record that the two numbers from which the complainant has received calls belonged to the applicant, but it is not yet clear that such two numbers were part of the five SIMs recovered from the applicant or that out of the five SIMs, two were such from which the complainant received the threatening calls on his mobile number. As a matter of fact during the course of arguments it came to surface that some of the SIMs upon examination were found to be of co-accused Amir Sultan, son of Sultan Ahmed and not of the applicant. There are inconsistencies as to the number of SIMs recovered. In the 161 statements the number is shown as five, whereas in the recovery memo the same were shown to be seven. This recovery by itself creates doubts and need further inquiry, same is the position with the recovery of currency note. No particulars whereof were ever given, such as denomination, numerical thereof and the kind of taint on such currency notes. Under the above facts and circumstances of the case, we find that the case of the applicant falls within the pale of subsection (2) of section 497, Criminal Procedure Code inasmuch as the SIMs those were allegedly recovered still require data collection to connect the applicant with the same, so also with regard to the alleged tainted currency notes, particulars whereof were not given at all. This being the position, the applicant is enlarged on bail subject to his furnishing solvent surety in the sum of Rs.100,000 (One Hundred Thousand) and P.R. bond in the like amount to satisfaction of the trial court. Needless to mention that above findings are tentative and only for the purposes of determination of the present bail application and shall not prejudice the trial of the case in any manner whatsoever. H.B.T./M-181/K Bail granted.