2017 PLP 1073 (MLD)

SHAHID HAMEED DAR, J.

The complainant Lieutenant Colonel (R) Muhammad Ayyaz Khan, the manager Admin Nishat Mills Chunian Limited has alleged in FIR No.238/15, dated 21.06.2015, under section 380 P.P.C., (section 408, P.P.C. added later on) police station Saddar Phool Nagar (Kasur) that some unknown persons cut locks of electric plant store of Nishat Mills Limited in between 14.06.2015 to 16.06.2015 and clandestinely removed sparking plugs, 104 in number, value Rs.4 millions and Actuating Mechanism Scanners, two in number, value Rs.1,50,000/-; he learnt about this fact on 16.06.2015 whereon he reported the matter to the police.

2. The complainant rendered a supplementary statement on 22.06.2015 whereby he contended that he had a definite information about involvement of Tanveer Hussain store-incharge (petitioner) and Arshad Mehmood Assistant-stores, both employees of Nishat Mills Limited, in this case as it was their duty to keep a vigil on the installations of the factory; both of them were in league with their co-accused Mumtaz Sabri and they sneakingly committed theft of the stores and disposed them of; Tanveer Hussain (petitioner) and his co-accused Arshad Mehmood had jointly admitted their guilt before him (complainant), Muhammad Akram security-incharge and Muhammad Mansha another security-incharge. He produced both the witnesses before the investigating officer on 22.06.2015 in support of his supplementary statement, who endorsed contents of it by deposing that the accused had admitted their guilt before all of them, but they did not mention the date, time and place in this regard.

3. Learned counsel for the petitioner has submitted that the case against the petitioner is virtually of no evidence and he has been falsely involved herein due to some hidden motives of the complainant; he has further contended that the petitioner's case calls for further probe into his guilt within the scope of section 497(2), Cr.P.C., therefore he may be saved from the lurking danger of being illegally arrested by the police.

4. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application on the ground that the petitioner had not only removed the factory parts, as mentioned in the FIR but he also committed theft of certain other articles which fact was unearthed during external audit, conducted by a C.A. Firm, "Riaz and Co"; the petitioner executed an agreement with the complainant on 19.06.2015, whereby he categorically admitted his guilt as to the crime alleged and undertook to make good the loss to the tune of Rs.41,26,098/- besides he also tendered a pro note and a cheque of the equal amount then before the complainant; the complainant had moved a written application for registration of FIR on 17.06.2015 but police registered it on 21.06.2015 and fault lies with the police in this regard; the petitioner has inflicted loss of millions of rupees onto his employers, therefore, he may not be granted the extra ordinary relief of bail before arrest.

5. After hearing the learned counsel for the parties and perusing the record, it is observed that learned counsel for the complainant has heavily relied on an agreement deed, having allegedly been executed by the petitioner in favour of the complainant admn-manager on 19.06.2015, whereby he appeared to have admitted his guilt and undertaken to make good the loss to the tune of Rs.41,26,098/- besides he urged it with equal vehemence that the petitioner had also issued a cheque and pro note of the equal amount to the complainant on the said occasion. This agreement came into being on 19.06.2015 and FIR was recorded, as mentioned above, on 21.06.2015. If afore-noted deed had been executed by the petitioner two days earlier, why this fact had been withheld by the complainant in the FIR and why the petitioner was not named as an accused therein. These crucial questions could not be satisfactorily answered by the learned counsel for the complainant except for submitting that the application, which had been moved by the complainant for registration of the FIR bore date of its preparation as 17.06.2015. Learned Deputy Prosecutor General Punjab has pointed out that the police received this application from the complainant vide rapat No.17 incorporated in the roznamcha on 21.06.2015 i.e. two days after preparation of the said deed and issuance of the afore-noted security documents by the petitioner. If contents of the agreement deed had any nexus with the present FIR, this fact should have straightaway been mentioned therein along with the name of the petitioner as an accused. Something appears to have consciously been withheld by the complainant. So far as admission of guilt of the petitioner along with his co-accused Arshad Mehmood before the complainant and his co-witnesses is concerned, it, at the most, constituted joint extra judicial confession of the accused, which may not be much relevant at this stage. It has been held by the Honourable Supreme Court of Pakistan as well as by this court on so many occasions that extra judicial confession of an accused is a weak type of evidence, let alone it be joint in nature, which may be termed as weaker of the weakest.

6. The petitioner had been involved by the complainant in yet another FIR bearing No.351/15 on 16.09.2015 for offence under section 408, P.P.C. registered at police station Sadder Phool Nagar (Kasur), on the strength of the audit report formulated by 'Riaz & Co.', wherein his application for bail before arrest (Crl. Misc.No.15392-B/ 2015) has allegedly been allowed by this court on 23.12.2015. The language of the pro note shows that there existed relationship of loaner and a loanee between the parties, which is so mentioned therein. In such a situation, the probability cannot be ruled out that the petitioner may have repaid the debt that he owed to his masters through the said documents. The petitioner's false involvement due to some malice or some hidden motives of the complainant may not be an outright improbability. Therefore, this application is allowed and ad-interim pre-arrest bail granted to him on 26.11.2015 is confirmed subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court. SL/T-5/L Bail allowed.