2004K4151 (PLP)

Applicants are involved in Crime No. 42 of 2003 of P.S. Dakhan recorded on 5-6-2003 at 2 a.m. at the instance of complainant Karim Bux Jatoi S.H.O., P.S. Dakhan under Sections 380, 511, P.P.C. The bail plea on behalf of the applicants/accused was filed in 'die Court of Sessions, but it was heard and decided by the learned IInd-Additional Sessions Judge, Shikarpur being Cr. B.A. No. 353 of 2003. The bail application was dismissed on 25-08-2003, hence the applicants/ accused have preferred this baiLapplication before, this Court on similar grounds for seeking post-arrest bail.

2. The brief facts as enunciated in the F.I.R. are reproduced herein below in extenso: - "It is complained on behalf of the State that I alongwith my subordinate staff namely A.S.-I., Ghulam Rasool Jamali, H.C. Anwar Ali, P.C. Shahzado Khan, P.C. Shahmeer Ali, P.C. Abdul 1-lafeez left Police Station duly in police uniform in police mobile driven by driver P.C. Gulzar Ahmed carrying service weapons vide such daily diary entry No.20/4-6-2003 for patrol duty in the area. After partrolling at different point when we reached Wasul picket, we received spy information that near salinity canal on link road leading from High Way to Dare hick:), 9 persons are extricating the oil .from the pipe line and filling a tanker and on such information we proceeded to pointed placed. At about 11-00 p.m. we reached near salinity canal on link road leading to Jahn), we saw on head light of vehicle and torch light 9 persons, one tanker and one car of following description. Two persons were-digging earth with spades, and rest were attempting to join the pipes. We asked the 'culprits to stop telling them our identity, hence the accused started running, but we encircled them and were able to apprehend 7 of them while rest two decamped taking advantage of darkness. We also secured the oil tanker and car in our possession and on inquiry the apprehended persons disclosed their names to be

1. Nasrullah son of Ghulam Nabi Mirani, r/o village Maroon, Kakepoto, Taluka Garhi Yasin,

2. Muhammad Yakoob s/o Ghulam Sarwar Malgani r/o village Ghulam Hussain Malgani, Taluka and District Larkana, 3 Muhammad Ramzan son of Ghulam Muhammad Arain r/o Sadiqabad,

4. Rasheed Ahmed son of Muhammad Khushhal Kaleri r/o village Sardar Ganh, Taluka Rahimyar Khan,

5. Akhtar Hussain son of Ahmed Bux Muhano r/o village Sadabad, .Taluka Rahimyar Khan,

6. Muhammad Imran son of Amir Zaman Awan r/o Sher Bahadur, District Attuk

7. Qalab Hussain son of Mazari Khan Jatoi, r/o village Haji Ali Murad Jatoi, Taluka Larkana and the accused further disclosed that they had come there tor purpose of committing theft of oil. The personal search of apprehended culprits was conducted in presence of Mashirs A.S.-I. Ghulam Rasool Jatuall and Head Constable Anwar Ali Soomro, but nothing incriminating was secured. We then with the help of headlight of vehicle and torch lights secured the following described articles of oil extrication and such Mashitanma of arrest, recovery of oil tanker, car and articles was prepared at the spot with the signatures of the above-named Mashirs. Thereafter we brought the arrested accused and oil-tanker, car etc. to Police Station. Since the above-named accused have attempted to steal away the oil and hence committed offence punishable under section 380-511, P. P.0 . hence the F I. R. is lodged against them on behalf of the State. Details of recovered oil tanker, car and articles:- (1) Oil tanker No.LS 3711 of silver colour with green belt to tanker valued at Rs.25 lac. (2) One Toyota Corolla Car No. Karachi 2300 of green colour valued at Rs. Two lac. (3) One black coloured pipe measuring 30 feet valued at Rs. One thousand. (4) One iron nail' valued at Rs. Two hundred. (5) Two iron pipe pieces valued at Rs .500 . (6) One clip for extricating oil valued at Rs.200. (7) Six pieces of pipe valued at Rs. 1,000; (8) One red colour Pano valued at Rs.100; (9) Six nuts and bolts valued at . Rs.200; (10) Ten wishers valued at Rs.100. (11) Two iron bars valued at Rs.50. (12) One cutting belt and two spades valued Rs.300. Total value Rs.27,03,650 Mr. Sarfraz Kahn Jatoi, learned counsel for the applicants has contended that the offence under sections 380, 511, P.P.C. has not been made out, but at the most the offence would fall under section 379, P.P.C. It is further urged by the learned counsel that nothing incriminating was secured from the personal search of the applicants and they were allegedly found empty handed and the applicants/accused cannot be termed as habitual offenders as observed by the learned IInd Additional Sessions Judge while rejecting the bail application, as no independent person has been cited as witness in the case and no ()Vert act is attributed to the applicants for stealing the petroleum substance. The applicants have been made target in the enmity with the police and there are no reasonable grounds to believe that applicants being guilty of offence punishable with death, imprisonment for life or ten years, as such the matter requires further inquiry and the applicants/accused are entitled for the concession of bail It is further alleged by the learned counsel that the offence alleged against the applicants does not come within the prohibitory clause of section 497, Cr.P.C. Mr. Sarfraz Khan Jatoi, learned counsel for the applicants in support of his arguments, has relied upon the following case-laws:- (1) Saddaruddin v. State (1994 PCr.LJ 1215); (2) Amanullah v. State (1997 MLD 1470); (3) Ghulam Rasool v. State (2003 PCr.LJ 387); (4) Saeed Muhammad Shah v. State (1993 SCMR 550). Conversely Mr. Mushtaq Ahmed Kourejo, learned counsel for the State has vehemently opposed this application on the ground that the applicants/accused were arrested on the spot alongwith oil tanker, one car and other articles, which can be used in stealing the oil. It is pointed out by the learned counsel for the State that the applicants/accused and other co-accused dug the land near by the pipeline, who intended to fill the tanker and on such spy information the police party proceeded towards canal of link road leading to Daro Jakhro and police party saw 9 persons and two persons were digging the earth with spades and rest were attempting to join the pipes. The police party encircled them and apprehended 7 accused persons while rest decamped taking the advantage of darkness. It is further argued by the learned State counsel that if the offence does not fall within prohibitory clause of section 497, Cr.P.C., the applicants/accused cannot be claimed bail as a right, as they had tried to extend loss to the National exchequer by trying to steal the petroleum substance while tampering the pipeline, therefore, they have attempted to commit a heinous offence, as such they were arrested with device and pipe line cutters, clip, nut, bolt and one cutting belt and 7 others pipe lines, iron pipe and iron nail with a view to steal away the oil.

3. I have considered the arguments of the learned counsel for the respective parties and the case-law cited at the bar.

4. Admittedly, the applicants were arrested at the spot by the raiding party with whom no enmity has been advanced to implicate the applicants/accused in false case. The argument of the learned counsel that the ingredient of section 380, P.P.C. are not attracted to the facts and circumstances of the case. This point can only be resolved by recording the evidence by the Trial Court regarding the commission of the offence. It is not agitated by the learned counsel for the applicants that all the devices and material for stealing the petroleum have been foisted against the applicants and other co-accused by the police party. As Mashirnama of the Wardat, the applicants and co-accused were digging the earth nearby the pipeline with the spades and the applicant/accused were arrested for making the connection in the pipeline. The police party on spy information reached at the place of Wardat, but applicants/accused and other co-accused tried to run away, but police party apprehended seven accused, persons whereas remaining two culprits ran away while taking the benefit of darkness. Thereafter, the raiding party arrested the applicants/accused and secured oil tanker, one car and other articles from their possession and enquired the names of arrested accused. On disclosure of the culprits, they disclosed their names to be Nasrullah, Muhammad Buz, Muhammad Ramzan, Rasheed Ahmed, Akhtar Hussain, Muhammad Imran and Talib Hussain. At that time the arrested accused persons admitted their guilt that they had come for committing the theft of oil. The police party also secured two spades from the place of incident where they digging the earth for attempting to join the pipeline from the main line. Although the offence is not punishable with death or ten years, but this offence relates to cause loss to National exchequer by attempting to steal the oil from the main line.

5. The main argument advanced by the learned counsel for the applicants is that the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. and applicants/accused are entitled for the concession of bail and during the arguments of the learned counsel for applicants, it is conceded that the applicant Rasheed Ahmad was driven the oil-tanker being its driver and the oil-tanker belongs to one Pathan and it is also conceded that applicant Muhammad Yakoob had driven the car which belongs to his father and the same vehicles were seized by the raiding party at the place of incident.

6. With regard to the proposition that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C. there is pronouncement of a case Imtiaz Ahmed v. State (PLD 1997 SC 545). In this authority, it has been dilated by the Hon'ble apex Court, which is reproduced as under:- In the same authority, it is also observed by the Hon'ble apex Court that refusal of bail, to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. The Hon'ble Supreme Court has further observed in the same authority, which is as under: "The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated, in all walks of life. The people commit offences detrimental to the society and the country for money." It is also highlighted by the Hon'ble apex Court in the case of Tariq Bashir v. State (PLD 1995 SC 34), the observations made in the above-cited case are as under:-‑ "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non‑bailable offences the grant of bail is not right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principles to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a 'rule and refusal an exception. So the hail will be declined only in extraordinary and exceptional cases." There is another view expressed in a case of Shabir Ahmed alias Shablee -v: State (1999 PCr.LJ 1348). The observations made in this case are reproduced herein below:-: "No doubt the petitioner is charged with an offence under section 337-F(v), P.P.C. which is not covered by the prohibition contained in section 497, Cr.P.C.- but he caused such an injury to the complainant which made him permanently disabled. He has gone through surgery many times just to be on his legs again, but perhaps he will have to remain on crutches. It is now well-established that even regarding offences not covered by the prohibitory clause of section 497, Cr.P.C. the Court can decline to admit an accused to bail where there are exceptional circumstances. Reliance is placed upon the case of Imtiaz Ahmed and another v. The State (PLD 1997 SCMR 239)." In the above authority, the case of Tariq Bashir v. State (PLD 1995 SC 34), was considered.

7. In view of the dicta laid down in the above authorities, I have no option but to follow the same, the applicants/accused have not made out a case for grant of bail. The case-law cited by the learned counsel for the applicants is distinguishable from the facts of the present case.

8. Resultantly, the bail application is dismissed. However, the petitioner can move for bail afresh in the Trial Court after recording of some material evidence. N.H.Q./R-16/K Bail refused.