2000 P Cr (PLP)

The applicants have been sent up before the IX Additional Sessions Judge, Karachi South for trial in connection with commission of offence under sections 395, 342 and 506-B, P.P.C. where their bail plea was submitted, but was rejected. This rejection occasioned the present bail application.

2. F.I.R. in respect of the offences, alleged to have been committed on 3-7-1999, was registered at Darakhahan Police Station on 24-11-1999. As disclosed in the F.I.R. complainant Nasreen Yousuf is niece of the applicant Jamil Akhtar Kiyani and is a British National. She, alongwith her spouse came back to Pakistan to resettle and brought 1,22,400 U.S. Dollars in the form of cash and travellers cheques. When the couple was staying with Jameel Akhtar Kiyani at his house, the latter, with the help of his family members and the applicant Altaf Hussain, who is his guard, wrongfully confined them in a room on gun point, threatened them to kill and extorted the amount. The accused took the husband of the complainant forcibly to the Standard Chartered Bank, Clifton Branch, where an account was opened by Jamil Akhtar Kiyani and the amount was deposited therein. He forced the husband of the complainant by show of weapons to sign the Travellers Cheques.

3. The contentions of Mr. Ilyas Khan, learned counsel for the applicant Jamil Akhtar Kiyani, are that the F.I.R. was lodged after an inordinate delay, there is a civil dispute about the matter and the officers who investigated the matter gave an opinion that no case was made out. He referred to an affidavit filed by the complainant in Suit No.998 of 1999 filed in this Court, and reports of Investigating Police Officers. In the report under section 168, Cr.P.C., made on 20-12-1999, Hameedullah Memon, Inspector, CA.A., gave an opinion that the case was very weak and was not worthy to be challaned. D.S.P. Legal also reported on 1-1-2000, that the case was not worth to be sent up in the Court of law. Yet a charge-sheet was submitted in Court on 14-1-2000.

4. Mr. Gulzaman Khan, pressing the bail plea of the applicant Altaf Hussain, referred to the Constitution Petition No.466 of 1999, filed by the complainant as an endeavour for registration of F.LR. and the order of the Court rejecting the petition. He also referred to the civil litigation about the dispute. He submitted that the case is based on documentary evidence which is secure.

5. On the other hand, Shaikh Mir Muhammad, learned counsel for the complainant, submitted that delay in F.I.R. has an adequate explanation. He argued that the applicant Jamil Akhtar Kiyani is a retired D.S.P. and a very influential person and due to his influence, F.I.R. was not being registered and it was due to his influence that the Investigating Police Officers gave their opinion to save him and conducted investigation dishonestly. Mr. Shaikh submitted that Jamil Akhtar Kiyani had connections with the Advisor to the Prime Minister who was running the affairs of the Province and, therefore, F.I.R. was not registered and it could only be registered after the charge of the Government.

6. Mr. Arshad Lodhi, A.A.-G. opposed the bail plea and supported the contentions of Mr. Shaikh Mir Muhammad.

7. It is a matter of record that F.I.R. was registered after more than four months of the offence, but the documents placed on record show that A the complainant continued efforts for the purpose, which include filing of a Constitution petition in this Court. This provides an adequate explanation for the delay for the present purpose.

8. It is on record that the police officers involved at the stage of investigation opined that the case was not worth sending up for trial. The case has now been submitted before the Court and it is for the trial Court to evaluate the strength of the case. These circumstances, however, reflect that the applicant Jamil Akhtar Kiyani has ability to influence the affairs.

9. Although the law of bail has developed in a different direction and the quantum of sentence for the offence as well as adequacy of material to infer involvement of the accused in the crime have gained more relevance and significance as a determining factor and consideration for grant of bail, yet the basic principle of jurisprudence that one cannot be punished before his guilt is proved, has not lost force and applicability.

10. An accused is not incarcerated as a punishment for commission of the crime but the object is to facilitate the proceedings of the case, which may be affected adversely by non-attendance of the accused or by any attempt on his part to tamper with the evidence. Thus, the most significant and prime consideration for a decision about bail of an accused are still the probability of his abscondance and chances and capability for an attempt to tamper with the evidence.

11. In the present case, ex facie, the applicant Jamil Akhtar Kiyani has a capability to influence the prosecution case, as reflected by the circumstances mentioned above, and there is a likelihood of tampering with the evidence. It will not, therefore, be in the interest of justice to release him on bail. His bail plea is rejected.

12. Applicant Altaf Hussain is a servant and guard of Jamil Akhtar C Kiyani and allegation against him is that he was with the latter when the complainant party was wrongfully confined. He was also armed but, being guard, he was expected to carry weapon. He would not be a beneficiary of the offence. For these reasons, applicant Altaf Hussain is admitted to bail. He shall be enlarged on bail on furnishing surety in the sum of Rs.1,00,000 (Rupees one lac) and P.R. Bond in the like amount, to the satisfaction of the trial Court. H.B.T./J-4/K Order accordingly.