2020 PLP 151 (YLRN)

MEHMOOD A. KHAN, J.

This a pre-arrest bail application filed on behalf of applicants/accused named above, arising out of FIR No.30/2018 registered at Police Station Agra, District Khairpur for the offence punishable under Section 462-E, P.P.C.

2. Per FIR, the allegations against present applicants/accused are that the complainant Riaz Ahmed Memon, working as Inchage Engineer at SSGL Gambat Office, lodged the FIR on 07.08.2018, alleging therein that on the day of report at 0900 hours, he along with Mr. Munawar Babar Mahar and Munir Ahmed Mahar both deputy Manager counter gas theft operation wing Sukkur reached near Ice-Factory situated at link road, leading from Jado Wahan towards Village Muhammad Wahan, accused namely Zuhabi and Waqar who were present in the Ice Factory, seeing the complainant party, they fled away. Complainant party checked the site and found that one Gas pipe illegally installed in the main gas pipe line of 4 diameter and in that manner, accused were using sui gas illegally by running Hino engine for operation of their Ice Factory.

3. Learned counsel for the applicants/accused contends that there is delay of seven hours in lodging of the FIR whereas the distance of Police Station from the place of incident is said to be about four to five KMs. That the complainant states that complaints were present with him for a few months; however, not a single villager has been associated as a mashir. That the labours and workers are not mentioned in the FIR, which are required to run a Factory. It is further contended that the applicant No.2 has taken stand of alibi and in this regard certificate of Bank is annexed. Learned counsel has relied upon the reported cases of 2017 PCr.LJ 434 and 2016 PCr.LJ 122 contending that bail is entertain-able in Gas matter on account of lessor punishment to be considered. It is also contended that no gas kit has been recovered in the matter.

4. Learned counsel for the complainant i.e. Sui Southern Gas, Limited contends that other proceedings in respect of present applicants have lodged previously and in this regard reference is made to FIR bearing Crime Nos.33 and 36 of 2017, copies of which have been filed by way of statement, concerning to same Police Station as well as to Police Station Larkana. Learned counsel for the complainant relies upon 2018 PCr.LJ 1547 Sindh, 2018 MLD 169 Sindh and 2017 MLD 1076 Sindh in respect of Gas theft. He relied upon 2017 PCr.LJ Note 47 Sindh, 2016 SCMR 2064, 2017 YLR Note 301 Sindh, 2018 YLR 1162 Lahore in respect of alibi and further relies upon PLD 2009 SC 427 in respect of mala fides required to be shown in pre-arrest cases. It is also contended that recoveries of incriminating articles have been made in the matter.

5. Learned D.P.G. contends that the incident was reported on the same day, the names of the accused are present, who were found available at the scene of the crime and had left when the complainant party arrived. He further contends that the recovery was made on the same day by preparation of memo and the statement under Section 161, Cr.P.C., supports the version of complainant, which was recorded on the same day. It is further contended that the plea of alibi has not been taken before the Investigating Officer, the repetition of offence is present on the part of the applicants and no ulterior motive has been shown against the complainant or the prosecution. That Sections 15 and 17 requires the punishment not less than five years up to 10 years and as such same comes within the prohibitory clause of Section 497, Cr.P.C. That the Investigating Officer has collected sufficient material against the present applicants. 6 Learned A.A.G. adopts the arguments of learned D.P.G. as well as complainant in the matter.

7. Having heard the learned counsel and gone through the record. The present bail application being of pre-arrest nature mala fides are required to be brought up in respect of which only wild allegations have been made of enmity of rivals in the bail application and nothing has been shown in this regard appearing from the record. Repeated allegations are also present, the offence punishable though may be considered for the lesser sentence; however, the repetition of such offence cannot be appreciated and in the present circumstances, the pre-arrest bail application failing to show any element of mala fide on part of the complainant/ prosecution is found not maintainable as such stands dismissed and the interim order stands re-called. The application stands disposed of accordingly. ADN/Z-12/Sindh Bail dismissed.