2006 PLP 2905 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this application under section 498, Cr.P.C., Muhammad Rafique petitioner seeks bail before arrest in case F.I.R. No.25 dated 2-6-2004, registered under sections 161/342, P.P.C. read with section 5(2) Prevention of Corruption Act, 1947 at Police Station Anti-Corruption District Vehari, on the statement of Zulfiqar Ali.

2. The brief allegation against the petitioner levelled by the complainant in the F.I.R. is that on 27-3-2003, Zulfiqar Ali complainant was present at his . jewellery shop situate at Pakhi More Police Station Machhiwal Tehsil and District Vehari. At about 6-00 p.m. Mian Muhammad Rafique S.-I. petitioner C.I.A. Model Town, Lahore entered in his shop along with some other persons in civil dresses who were in handcuffs and they asked the complainant that he had purchased stolen gold from these persons, hence, he was being arrested. The complainant replied that neither he had purchased the gold from these persons nor they were earlier known to him, whereupon Muhammad Rafique, S.-I. petitioner along with other police constables not only dragged the complainant but also slapped him and abused him. Then he was boarded in the official vehicle and taken to Police Station Machhiwal, wherefrom he was taken to Lahore. During the journey, the police officials time and again remained beating the complainant and he was being forced to make statement about the purchase of the gold, but as the complainant had not purchased the gold so he made total ignorance about the thieves. After taking him to Lahore, for about 10/12 days he was kept in illegal confinement and he was also given severe torture. In the meanwhile, in order to get rid of their torture the complainant consented to give illegal gratification and asked his relatives to pay the amount whatever they demanded. During this period, Muhammad Rafique petitioner told that this stolen gold was of Haji Muhammad Anwar Goldsmith and on mobile he was called. Gulzar Ahmad, Haji Muhammad Iqbal sons of Haji Muhammad Ali Goldsmith and brothers and Mazhar Hussain resident of Garh Fateh Shah Tehsil Tandlianwala District Faisalabad close relatives of the complainant came to C.I.A. Model Town, Lahore and brought Rs.1,90,000 for so called complainant Haji Muhammad Anwar and Rs.8,000 for S.-I. petitioner himself who had also taken out Rs.1,600 during the search of the complainant and as such total an amount of Rs.20,00,000 was paid to Muhammad Rafique petitioner for releasing the complainant who was also threatened that if he had disclosed about this to someone else he would be arrested again in some other case.

3. Learned counsel for the petitioner contends that the petitioner is the employee of Police Department who while posted at C.I.A., Lahore Branch along with other police officials had arrested the accused/ Odd Gang who confessed the commission of 26 dacoties of stealing gold and sold to three goldsmiths i.e. Hafiz Ghulam Yasin goldsmith of Burewala, Azhar goldsmith of Dunyapur and Zulfiqar complainant of the present F.I.R. He was joined in the investigation and it was found that the complainant had purchased the gold which was the case property of case F.I.R. No.39 of 2003, registered at Police Station Chunian which was taken by the Odd dacoit gang from the house of Muhammad Anwar and Rana Muhammad Aslam goldsmith whereupon a `Punchayat' was convened, which the three goldsmiths had also attended and the complainant admitted the purchase of certain gold, who subsequently promised to return gold to Rana Muhammad Aslam and Haji Muhammad Anwar, the case property of the above said case. He provided 25 tolas of gold during the investigation conducted by D.S.P. which has been taken on Superdari by the said persons i.e. Haji Muhammad Anwar and Rana Muhammad Aslam. It is further contended that Zulfiqar complainant in order to cause harassment has got lodged this false case against the petitioner to restrain the police from arresting him in any criminal case as he had purchased gold from the dacoits of different gangs. It is also contended that the complainant moved an application to CCPO who deputed D.S.P. Cantt. Division for- getting the matter inquired into and after detailed inquiry he found the allegations as false. It is next contended that during the investigation it was settled on 28-12-2004 before the Assistant Director Anti-Corruption that if Haji Muhammad Ashfaq President Gold Association makes oath on Holy Qur'an then the case may be cancelled, who along with the petitioner came to the Assistant Director but the complainant did not turn up and it was found that the complainant had got lodged this case with mala fide intention and ulterior motives. It is also contended that the documentary evidence negates the version of the complainant and the petitioner is entitled to the concession of pre-arrest bail. Relies upon the following cases law: Sr. Title Reported in

1. Haji Meraj Din v. The State KLR 2000 Crimi- nal Cases 190

2. Khadim Hussain? nd another v. The State 2004 MLD 1000

3. Muhammad Arshad and another v. The State 2004 MLD 1836

4. Mukhtar Ahmad v. The State 2001 MLD 1563

5. Muhammad Anwar v. The State NLR 2004 Criminal 518

6. Safia Bani and? others v. The State PLD 2003 Karachi 679

7. Inayatullah Khan v. The State 1996 PCr.LJ 1548

8. Muhammad Khan? And another v. State 1999 SCMR 1220

9. Khan Mir v. Amal Sherin alias Kamal and 2 others 1989 SCMR 1987

10. Mirza Javed Igbal v. The State through Chief Prosecutor Ehtesab Bureau, Azad Kahsmrir PLD 2001 Azad J&K 46

11. Fazal Muhammad v. Muzaffar Hussain etc. 1981 SCMR 959

12. Aurangzeb v. The State 1999 Cr.L.J. 451

4. On the other hand, learned counsel for the complainant opposes the bail application on the ground that bail before arrest is meant to protect the innocent citizens only if they are found to have been involved with mala fide intention but in the present case no such element is present and even recovery of grabbed amount is yet to be effected. It is further contended that the petitioner has committed heinous offence and there was no reason to falsely implicate the petitioner in the present case, hence the petitioner is not entitled to the grant of pre- arrest bail even due to his conducted as he did not appear before the learned Special Judge, Anti-Corruption.

5. I have heard the learned counsel for the parties and also perused the record with due care and caution. The complainant was allegedly arrested on 27-3-2003, but he moved the application for registration of present case on 23-9-2003 after about six months thereafter and the said delay has not been properly explained. On the other hand, the complainant claims that he was forced to make payment of Rs.1,90,000 to Haji Anwar complainant of case F.I.R. No.39 of 2003 registered at Police Station Chunian, District Kasur on the complaint of Haji Muhammad Anwar as the dacoits had committed dacoity in the houses of Haji Muhammad Anwar and Rana Muhammad Aslam both brothers, who were goldsmiths by profession. They levelled allegation against the complainant that he had purchased gold from the Odd Gang who made confession of commission of about 26 dacoities during the investigation after their arrest and the said gang had named one Hafiz Ghulam Yasin goldsmith of Burewala, Azhar goldsmith of Dunyapur and Zulfiqar complainant of the present case goldsmith of Vehari. He was joined by the police during investigation of the present case and documents have been brought on the record duly written on the pad of President of All Punjab Gold Test and Refine Laboratories to the effect that Haji Mushtaq Ahmad along with Haji Muhammad Aslam Chairman All Punjab Gold Test Laboratories and Haji Muhammad Ashfaq President Raiwind Gold Association went to Muhammad Rafique S.-I. C.I.A. Model Town Branch in order to recognize Zulfiqar Ali goldsmith where Siraj alias Siraji etc. dacoits along with their companion were arrested, who disclosed that they had sold gold ornament to Zulfiqar Ali son of Haji Muhammad Al complainant of the present case, but firstly Zulfiqar did not accept the said allegation and subsequently when members of the association had taken him separately h confessed about his fault for the purchase of ornaments from the accused. He the showed willingness to pay the price of the said gold ornaments with promise to b released from the said case. This document has negated the story narrated by the complainant. Similarly, according to the learned counsel for the petitioner the said gold ornaments purchased by the complainant were case property of case F.I.R. No.39 of 2003 and the said gold ornaments were obtained by Ran Muhammad Aslam and Haji Muhamina Anwar victims of the said case F.I.R. o Superdari on 19-8-2003 by the orders learned Magistrate, but the petitioner h2 been falsely implicated in the present case.

6. From the perusal of the record it found that the complainant has not spoke the whole truth, but has concealed the certain facts and in such' circumstance when the story is not found totally correct the possibility of levelling of false allegation against the police to avoid h arrest for allegedly purchasing stolen gold cannot be ruled out. The petitioner h already joined the investigation and the only allegation to the extent of illegal confinement of the complainant has bee prima facie made out against the petition falling under section 342, P.P.C. which bailable offence.

7. Even otherwise, the complainant had subsequently admitted the purchase stolen gold from dacoits before the members of Goldsmith Association, who have confirmed so in writing on the business pad: Admittedly, the petitioner was taken to the police station and as a result of any compromise if he was released, he cannot be benefited of the same. The case-law cited by the learned counsel for the petitioner is applicable to the facts and circumstances of the present case. The delay in lodging this case is very significant as the complainant was allegedly deprived of about Rs.2 lac due to the act of the petitioner, but he waited for six months and no explanation has been given therefore in the F.I.R. Hence, this application is accepted and ad interim pre-arrest bail already granted to the petitioner vide order dated 29-6-2005 is hereby confirmed subject to his furnishing bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of learned Special Judge, Anti-Corruption, Multan. N.H.Q./M-1235/L?????????????????????????????????????????????????????????????????? Pre-arrest bail allowed.