Criminal Bail No. 977 of 2002.
Criminal Bail No. 1078 of 2002.
Criminal Bail No. 1000 of 2002.
FOR HEARING.
22.8.2002.
Mr. Arif Ghafoor Mangi, Advocate for the applicant in Cr. Bail 977/2002.
Mr. Anwar Ali Shah, Advocate for applicant in Cr. Bail 1078 of 2002.
Mr. Khawaja Naveed Ahmed Advocate for applicant in Cr. Bail 1000/2002.
Syed Zia Nasiruddin, Advocate for Complainant.
Mr. Fazal-ur-Rehman Awan, Advocate for the State.
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WAHID BUX BROHI,J.- This order shall dispose of the bail applications listed above which arise out of FIR No. 46 of 2002 registered at P.S. TPX District West Karachi, under Section 420, 467, 468, 471, 411, 424/109/34 PPC. The FIR incorporates a written complaint from Usman Ahmed Qureshi, addressed to SHO TPX. Contents whereof are as under:-
“ The SHO TPX Karachi District West subjection loddging FIR regarding fraud committed against company. Dear Sir, to meeting and as per your request hereby submit that application regarding the above mentioned subject. We are multinational company dealing in the said of Textile Material and have been in business for many years now out police is clearly defined and we accept pay order in return of cuer goods sold, on the 11th December, 2001 we entered into a contract with a person by his name of Shahid Mehmood, who wished to purchased our product Lycra Yarn worth 4.72, Millions, he agreed to pay initially a sum of Rs. 295/- million through a pay order, we accepted the pay order No. 126678, dated 11.12.2001 drawn an industrial Bank of Pakistan amounting to Rs.29,54880 as per company police after receiving this pay order we allowed delivery of goods when we deposited it for clearance of IDBP then following day IDBP informed the City Bank that this pay orders but amount is as compared to their record, IDBP also accepted that this serial is correct and they the reginal-------------the lodged their------in their concerned. Police Station, we were refused payment and suffered a total loss, we which that out FIR should be lodge and our money and goods may be recovered from the culprits. You will a copy of this enquiry of Mr. Shahid Mehmood, a copy of the pay order and Mr. Shahid Mehmood fraudulently visiting card copy an early favourable action will be highly appreciated .”
In order to elucidate the facts of the case, learned counsel for State, Mr. Fazal-ur-Rehman Awan on perusal of police papers stated that the pay order was delivered on 11.12.2001 to the Company which was presented to the concerned Bank on 13.12.2001 for encashment, but the goods were delivered earlier on 11.12.2001. Abdul Hameed one of accused persons was arrested on 10.3.2002 and 360 Cones of Lycra Yarn were recovered from his possession and on his pointation Arif Ali applicant in Cr. Bail 1078/2002 was arrested and 288 Cones of Lycra Yarn were recovered from him. Again on pointation of Arif Ali Bungalow No. 93-D, North Nazimabad, was raided and 390 Cones of Lycra Yarn were secured on 14.3.2002. (The Investigation Officer was however found that Selman Fasih, Suleman Misbah and Tariq succeeded in running away.) Latter on Selamn arrested on 6.5.2002 and on his pointation co-accused Yousuf Ali was arrested and the latter was put to identification test on 9.5.2002 through Complainant Usman Ahmed and witness Khawar who identified him in the test. Selman disclosed to police that four cartons were sent to Faisalabad through Shaikh Anwar Ali who is applicant in Cr. Bail 1000/2002. This is the material/evidence on the basis of which the accused were arrested.
Mr. Zia Nasiruddin , Advocate for the Complainant Company submitted that Lycra Yarn is exclusively imported by this Company under Licence and no one else is permitted to sell or purchase the same and that the applicants have not mentioned any invoice to show that they were bona fide purchasers.
It is contended by Mr. Khawaja Naveed Ahmed, Advocate for the applicant that there is no recovery from Shaikh Anwar Ali who is a business man and is just a bona fide purchaser having no knowledge of previous transaction and the offence under Section 411 PPC is not applicable at all since offence of theft is never alleged.
Mr. Asif Ghafoor Mangi, learned counsel for Salman Fasih contended that the name of applicant does not transpire in the FIR and there is no recovery from him and that he has been implicated on the basis of evidence of co-accused Arif Ali which is inadmissible in evidence and that he was not put to identification test. He further pointed out that even names of the witnesses are not described in the FIR. Mr. Anwar Ali Shah, learned Advocate for the Applicant Arif Ali submitted that Arif Ali is a bona fide purchaser and since he has purchased the material from Salman Fasih and there is no evidence of fraud or even receiving of stolen property against him.
I have considered all the contentions carefully. Admittedly, the case has been challaned for offences under Section 420/467/468/471/424/411/109/34 PPC, but from the material available in police papers there is no allegation of theft, therefore the case with reference to offence under Section 411, PPC would certainly require some more material. Offence under Section 420 PPC is bailable while the offence under 468 read with Section 471 is punishable with 7 years. As regard to forgery under Section 467 PPC, the prosecution relies on the versions given by co-accused that too on the point of conspiracy, otherwise there is no direct evidence indicating the role of the present applicants. Even otherwise, the act of fraud pointedly alleged against accused Shahid Mehmood. Purchase/possession of Lycra Yarn by itself shall not deprive the applicants of the concession of bail. Offence under Section 424 is punishable with two years only and is bailable. No doubt the Complainant Company has been defrauded, but the guilt of applicants requires further enquiry.
In view of the above discussion the applications are allowed and the applicants are admitted to bail in the sum of Rs.2,50,000/- with P.R. bond in the like amount to the satisfaction of the trial Court.
JUDGE