2009 PLP 839 (YLR)

RAJA SAEED AKRAM KHAN, J.

Through this criminal miscellaneous the petitioner has sought his post-arrest bail in case F.I.R. No. 101 dated 8-10-2005 registered under sections 316/109/406/167/427/288/324/322/119/336/337-F(v)/337-A(ii)/34, P.P.C, read with sec tion 5(2)47, PCA, at P.S. Shalimar (Islamabad).

2. On 8-10-2005, in earthquake, building known as Margalla Towers, in Islamabad (Capital Terrority) collapsed to the extent of its 1/4th, resulting into deaths of its several residents and making some of remaining, permanently disabled, in addition to the financial loss, caused to them. The petitioner being owner of the said towers and Officers of C.D.A, who were responsible for supervision of the construction, have been booked in this case, being culprits.

3. Learned counsel for the petitioner has argued that the petitioner is totally innocent and has been falsely implicated in this case; that police is not empowered to register this case or investigate it; that none of the sections attributed in this case, falls within prohibitory clause of section 497, Cr.P.C; that the complainant/police officer was not an expert, who levelled allegations regarding invalid material and constructions etc; that he being non-technical person was not in position to fix responsibility of the incident; that question of fixing responsibility is of further inquiry; that Ist reasons of collapse were to be determined and then it were to be co-related with the persons responsible for the same. He has further argued that the petitioner is not nominated in the F.I.R; that order dismissing bail petition of petitioner, passed by learned Special Judge Central, Rawalpindi itself shows that the matter is that of further inquiry. He has submitted history of earthquake in Pakistan and has argued that this tower sustained more heavy earthquake, before it. He has further submitted that the petitioner was not in Pakistan at the time of occurrence, but later on he himself approached the Court of law to face the consequences in case reported against him; that no question of absconsion arises in this case; that nothing is to be recovered from the petitioner; that he is behind the bars since his arrest, whereas, trial is not insight; that the petitioner is previous no record holder, as this is single case against him; that he is purely business man; that affected persons of this incident have been satisfied and no one from them has come forward in this case. He stressed that co-accused has been granted bail, therefore, he is also entitled to the bail concession on the basis of principle of consistency. In support of his arguments he has relied upon the case laws, reported as 1985 SCMR 1949 (Jamal-ud-Din v. The State), 1980 SCMR 142 (Abdul Salam v. The State), 2007 SCMR 1549 (Ghulam Murtaza and an other v. Muhammad Akram and an other), 2005 SCMR 784 (Syed Muhammad Firdaus and others v. The State) and 1996 SCMR 364 (Fazil Khaliq alias Hafiz v. The State through AG N.-W.F.P. and another).

4. On the other hand, learned S.S.P. for the State, has argued that this is prompt F.I.R; that there is sufficient material to connect the petitioner with commission of offence; that the petitioner is principle accused; that the responsibility has been properly assigned and it is proved through reports of Experts that substandard material was used in construction of this tower; that defects were objected/reported by the C.D.A. at the time of construction of tower, but the petitioner intentionally did not care to remove the same; that in whole Islamabad this tower was only building which collapsed, which itself proves that inferior material was used and construction was not up to the mark; that no N.O.C. was issued to the petitioner for construction/ completion of said tower, but he rented out apartments to different people and also made different transactions in this regard; that co-accused was granted bail on medical ground, therefore, principle of consistency does not favour the petitioner; that the matter was reported in International Media, but the petitioner did not approach the proper forum to face the case since October, 2005; that matter was taken up through Interpol and now in 2008 he has been made to come Pakistan; that he remained internationally fugitive from law. He prayed for dismissal of this bail petition. In support of his contentions, he submitted different documents and relied upon the case laws, reported as 1985 SCMR 1166 (Akhtar Ali v. Azhar Ali Shah and others), 1998 SCMR 190 (Sher Ali alias Sheri v. The State), PLD 1985 SC 402 (Awal Gul v. Zarwar Khan and others) and 1999 MLD 982 (Amjad Pervaiz alias Amjad v. The State).

5. I have heard arguments advanced from both sides and have also perused the record carefully.

6. Admittedly, the occurrence took place on 8-10-2005, whereas, the petitioner was arrested on 14-5-2008. After the occurrence he remained absconder and record transpires that he was forced to come back, which is proof of his intentional absconsion. It cannot be said that he was not aware about the incident, as admittedly the occurrence was reported in Print as well as Electronic Media in all over the world. He remained absconder for indefinite period, for which no explanation has come on record. Perusal of the reports, regarding Margala Towers, copies of which have been submitted by learned Special Public Prosecutor, reveal that inspite of number of objections regarding defects in the construction and directions by the C.D.A. to remove the same, the petitioner did not take any measure to remove the same. Even no N.O.C. has been obtained from the concerned authority before handing over the possession to its residents. People have shown their trust upon the petitioner and spent huge amounts, but the petitioner did not bother to remove the defects before delivery of possession to the innocent inhabitants, which was intentional negligence on the part of petitioner, resulting into large number of casualties. The case of the petitioner is distinguished from his co-accused, who was granted bail, as the petitioner is the main person, who got constructed the said Towers and being owner of the same, he could not escape from his liability. Although the petitioner is not maintained in the F.I.R. by name, but he being owner of the Tower is mentioned in the F.I.R. The argument of learned counsel for the petitioner that affected persons have been compensated is of no help to the petitioner, as life cannot be compensated in the form of Plots/rupees. At bail stage, deeper appreciation of evidence is not allowed and only tentative assessment is to be made, as laid down by Honourable Supreme Court of Pakistan in case law reported as 2002 SCMR 247 (Muhammad Shahid v. The State). The next argument of learned counsel for the petitioner that offences attributed in this case do not fall within prohibitory clause, has also no force, as bail cannot be claimed as a matter of right in the cases, not falling in prohibitory clause. Each criminal case is required to be dealt on its own merits independently. I have been guided from the case laws reported as 2008 SCMR 807 (Haji Muhammad Nasir and others v. The State) and PLD 2007 Karachi 27 (Raja Muhammad Zarat Khan v. The State). In reply of the argument, that the police was not empowered to register or investigate this case under section 5(2)47 PCA, section 156(2) of Cr.P.C. is very much relevant, as there is nothing in law to prevent a police Officer making a complaint in a case, of which the facts have come to his knowledge. If some irregularity is committed, same is curable under section 537, Cr.P.C. and unless it has actually prejudiced the accused, it should not be held to vitiate the trial. Reliance can be placed on the case law reported as PLD 2002 Lahore 200 (Muhammad Hanif v. The State).

7. In view of above discussion, I am of the considered view, that there is sufficient material available on record, to connect the present petitioner with commission of offence. This petition has no force and same is hereby dismissed. N.H.Q./M-48/ISL Bail refused.