2008 PLP 2275 (YLR)

SYED MAHMOOD ALAM RIZVI, J.

The applicant has impugned the orders dated 22-3-2008 and 5-3-2008 passed by the learned IIIrd Additional Sessions Judge, Karachi South, and the trial Court, respectively, in Crime No.54 of 2008 under section 379, P.P.C, of Police Station Boat Basin, Karachi, whereby the bail application was turned down by both the Courts. Precisely, the facts of the case are that the accused/applicant was caught by K.E.S.C. officials when he was carrying 35 Kg. cooper wire measuring 30 meters and subsequently, he was produced before the Police Station Boat Basin, hence the F.I.R. was registered on 28-2-2008. That after completion of the investigation, challan had been submitted before the trial Court. The charge was framed on 10-5-2008 and now the case is fixed for evidence. Mr. Ajmal Haider, learned counsel for the applicant contended that on the face of it, the F.I.R. was doubtful, and the case required further inquiry, as a cutter had been mentioned in the challan, but nothing of the sort was secured as per memo of seizure. The mashirnama itself is faulty as the same was prepared at the police station and on the point of said cutter, the statements of mashirs are contradictory, as they were interested witnesses and no compliance of section 103, Cr.P.C. was made by the police. The concurrent findings of the lower Courts are vague, capricious and not sustainable in law as no evidence has suggested that the accused/applicant was arrested while he was stealing or cutting the wires, and as only recovery was made from his possession, therefore, the case fell under section 411, P.P.C., which is punishable with 3 years, or fine, or both, and that grant of bail was a right, while rejection is an exception. He further contended that the case does not fall within the prohibitory clause of section 497 (1), Cr.P.C. as the case is not a heinous one and he has relied upon Kamran v. State PLD 1997 Karachi 484 and Ikhtiar Khan v. State 2006 YLR 932(2) in which bail were granted to the applicants in a case under section 13 (d), Pakistan Arms Ordinance and section 411, P.P.C. Conversely, Mr. Asadullah Baloch, learned State Counsel, opposed the grant of bail and supported the impugned order and further contended that no doubt the ingredients of section 379, Cr.P.C. were not available, but the case under section 411, P.P.C. is made out, which is punishable for three years and not bailable. Heard both the lawyers and perused the record. Admittedly, the wires recovered from the possession of the applicant though it is claimed were in violation of section 103, Cr.P.C. the recovery was made in the Old Clifton Area where it was practically impossible to collect witnesses particularly, against a person carrying incriminating material. The K.E.S.C. officials are roaming around in the city as there were a series of such incidents occurring regularly, as a result of which the city was facing load-shedding even in the winter season. I am not in agreement with the arguments of' the learned counsel for the applicant that this is not a heinous crime, instead, I deem this a heinous crime as all of society suffers from such crimes. Regarding section 411, P.P.C. or 379, P.P.C., the grant of bail is not a right, as the offences are not bailable. No doubt, in minor cases bail is a right and the rejection is an exception, but the case of the applicant falls under the exception clause. That the case of Kamran (supra) relates to section 13(d) and there were distinguishable facts of the case and the case of Iftikhar Khan (supra), which is comparatively similar to that of the accused, was carrying stolen property, which were air pressure pipes, said to have been stolen fro the Army Yard, Keamari, and the Court held that the case fell under section 411, P.P.C. and that the investigation had been completed. Therefore, bail was granted. The said air pipes were stolen from Army Yard, but in this case it is not mentioned that the same has been stolen from the Junkyard, etc., hence both the judgments are distinguished. In the above circumstances, I am not inclined to grant bail. The impugned order is proper and requires no interference of this Court. Bail application is dismissed. M.H./M-88/K Bail dismissed.