2021 PLP 1943 (MLD)

AMJAD ALI SAHITO, J.

Through the instant application, applicant/accused Gul Bahar Jatoi seeks post-arrest bail in Crime No.90/2019, offence under sections 15, 17, 24, 2(s) of Gas (Theft Control and Recovery) Act, 2016, registered at police Station Airport District Sukkur. Prior to this applicant/accused filed post arrest bail application before learned Sessions Judge Sukkur, but the same was dismissed vide order dated 11-03-2020, hence this bail application.

2. The brief facts of the prosecution case are that complainant Noor Hassan Domki Deputy Manager SSGC Regional Office Sukkur lodged the FIR on 01-10-2019 alleging therein that on 30-09-2019 he along with Manzoor Ahmed Shaikh Deputy Manager SSGC and Riaz Hussain Solangi Deputy Manager SSGC during checking/inspection of gas pipe lines of Bachal Shah Minai Sukkur found that the gas was being stolen by putting clip in 4 inches gas pipe line in the hotel. One generator, one gas kit, four pieces of pipes and gas rubber pipe were also secured from the hotel which was being run by the applicant. Ultimately complainant along with above said recovered property appeared at police station and lodged the FIR as stated above.

3. Learned counsel for the applicant/accused mainly contended that applicant/accused is innocent and has falsely been implicated in this case with mala fide intention and ulterior motive; that there is inordinate delay of about one day in lodging the FIR and such delay has not been explained by the complainant; that applicant/accused is not owner of the said hotel nor he has concern with alleged articles i.e generator, gas kit and rubber pipes which were allegedly recovered by the complainant from the possession of the applicant/accused; that no independent person has been cited as mashir of alleged recovery; that offence does not fall within the prohibitory clause of section 497, Cr.P.C; that investigation has been completed, case has been challand and applicant/accused is no more required for further investigation, therefore he prayed for grant of bail to the applicant/accused. He placed his reliance on case reported as 2017 YLR Sindh 609, 2017 PCr.LJ 1434 and 2016 SCMR 18.

4. On the other hand, learned counsel for SSGC has supported the impugned order and opposed for grant of bail to the applicant/accused on the ground that applicant/accused being owner of the hotel was found stealing sui gas by using rubber pipeline through service/auxiliary line; that there is sufficient material available with prosecution, which prima facie implicate the applicant/accused with the commission of offence. Per learned counsel, no enmity or ill will has been pointed by learned counsel for the applicant/accused to falsely implicate in this case; that complainant has secured generator, gas kit and gas rubber pes in presence of the witnesses, hence applicant/accused is not entitled for grant of bail. He placed his reliance on cases reported as 2019 SCMR 1457; 2018 PCr.LJ 1547; 2017 PCr.LJ Note 47 Sindh, 2016 SCMR 1527, PLD 2009 SC 427 and 2012 PCr.LJ 690 Sindh.

5. Learned DAG submits that case has been challaned and further supported the contention of learned counsel for SSGC.

6. Heard learned counsel for the parties and perused the material available on record. Perusal of FIR shows that on 30-09-2019 complainant along with Manzoor Ahmed Shaikh Deputy Manager SSGC and Riaz Hussain Solangi Deputy Manager SSGC during checking/inspection of gas pipe lines of Bachal Shah Minai Sukkur, found that applicant/accused made illegal connection with main gas pipeline and was supplying gas through a clip to unauthorized generate electricity for hotel and the complainant has secured one generator, one gas kit, four pieces of pipes and gas rubber pipe in presence of the witnesses from the hotel which was being running by the applicant/accused. Furthermore, on 31-02-2019 SSGC issued letter to applicant/accused with advice to pay Rs.328,800/- within 15 days being the value of gas consumption on account of direct use of gas for the period from 01-01-2018 to 30-09-2019. In the case of Alamgir Khan v. State and another (2019 SCMR 1457) wherein the Hon'ble Supreme Court of Pakistan dismissed the bail of applicant/accused and held that position taken by the learned counsel for the petitioner requires an in-depth analysis, essentially on the basis of evidence, yet to be recorded and thus falls far outside the barriers of tentative assessment. Statements of the witnesses, functionaries of the State with no animus or malice, duly corroborated by apparatus secured from the spot, constituted 'reasonable grounds', within the contemplation of Section 497 of the Code of Criminal Procedure, 1898 to prima-facie frame the petitioner with the charge that attracts the bar contained therein as Section 462-C of the Pakistan Penal Code, 1860 carries a punishment that may extend to ten years rigorous imprisonment. View taken by the Courts below being well within the remit of law is not open to any exception. Petition fails. Dismissed. The prosecution witnesses have implicated the applicant/accused in the commission of offence while recording their statements under section 161, Cr.P.C. The punishment provided for the offence under sections 15, 17, 24 and 2(s) of Gas (Theft Control and Recovery) Act, 2016 upheld ten (10) years and shall not less than five (05) years and fine of Rs. 3 million. At bail stage only tentative assessment is to be made and nothing has been brought on record to show any ill-will or mala fide on the part of the complainant to falsely implicate the applicant/accused in this case.

7. In view of above discussion, the learned counsel for the applicant/accused has failed to make out a good case for grant of bail. In such circumstances, the instant bail application is dismissed. The facts and circumstances of the case law relied upon by learned counsel for the applicant/accused are quite distinguishable from the case in hand, while the case law relied upon by learned counsel for SSGC are helpful.

8. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the applicant on merits. ADN/G-12/Sindh Application dismissed.