ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.2 of 2008

For hearing

25-1-2008

Mr. Naheed Afzal Khan, Advocate for the Applicant

Mr. Agha Zaafar, AAG for the State

       This bail Application has been moved on behalf of Applicant/Accused Muhammad Saleem in case FIR No.221/2007 under Section 409/34 PPC of Quaidabad Police Station, Karachi. The challan has been submitted in the Court of Special Judge, Anticorruption, Sindh and bail application was moved in the trial Court, which was rejected by the learned Special Judge (Provincial) in Special Case No.92 of 2007.

       The brief facts of the case are that Malik Arshad Mehmood, who was Writer Head Constable ('WHC'), commonly known in Police language as "Head Muharrir" of the Police Station, had lodged FIR on 20-6-2007 at Quidabad Police Station through his written statement recorded by him under Section 154 Cr.P.C. wherein he had stated that he was posted as Head Muharrir at PS Sharafi Goth, Landhi Town, Karachi. On 20-6-2007 SHO, Muhammad Irfan Meo had ordered him to take the key of Malkhana from accused WHC Muhammad Saleem 1470, accompany duty Officer SI Rafiullah and check the inventory in the Malkhana. The Complainant alongwith SI Rafiullah in presence of WHC Muhammad Saleem 1470 checked the inventory of the Malkhana and found that case property of case FIR No.61/2001 under Section 395 PPC containing medicine was available but the cash amount of Rs.4,41,700/- was missing. This fact was brought in the knowledge of the then SHO who had made inquiry from Applicant/Accused Muhammad Saleem but he could not give any satisfactory reply and, as such, the SHO had directed lodging FIR against the said WHC Muhammad Saleem. A case under Section 409 PPC was registered, WHC Muhammad Saleem was arrested on 21-6-2007 and was remanded to jail custody.

Subsequently, challan was submitted in the Court of Special Judge, Anticorruption (Provincial), Karachi, who has twice rejected the bail application of Applicant Muhammad Saleem vide orders dated 3-9-2007 and 27-10-2007. The learned trial Court observed that:-

'There are reasonable grounds for believing that accused has committed non-bail able offence and in these circumstances it cannot be said that case is of further inquiry. So far arguments of learned DC that accused is entitled to bail as a rule of consistency. I am not in agreement with their arguments. The accused/applicant being incharge Malkhana failing to hand-over case property to his successor is directly involved in the case while the co-accused has no direct role in the case. No such report was made against him and at the time missing of cash was noticed, he was not incharge Malkhana.

In the circumstances discussed above since there is no fresh ground raised for bail and no evidence in the case is yet recorded as such I see no justification for enlarging accused on bail and accordingly dismiss this application.'

       The learned Counsel for the Applicant has drawn my attention towards the charge sheet submitted in the Court. In the charge-sheet the facts are mentioned in the manner as if all the Head Muharrirs who were posted at different times had entered into arbitration amongst themselves and were contributing missing money from their pockets, prior to lodging of FIR. The charge-sheet shows that Malik Arshad Mehmood had contributed Rs.1,50,000/-, Nasir Hussain contributed Rs.90,000/-, ASI Rizwan Khan Rs.45,000/-, HC Sagheer Ahmed Rs.30,000/-. However, those Head Muharrirs who failed to contribute were made accused and those who had contributed were made prosecution witnesses. This is very alarming situation. The superior Police Officers should take notice of such type of thefts in the Malkhana of Police.

       The learned AAG has strongly opposed this bail application and stated that the police is for the security of the people and for checking the crime and if police officers themselves are indulging into the crime they should be given higher and exemplary punishment as compared to the ordinary citizens.

       The contention raised by the learned AAG are justified and I am in agreement with him. However, keeping in view the peculiar circumstances of this case, I think it is a fit case of holding further inquiry under Section 497(2) Cr.P.C. and the Applicant is entitled to be enlarged on bail pending such inquiry/trial.

In the present case, this theft has come to light after the Court ordered release of money to its owner and due to non-payment of certain contributing Officers, the SHO was constrained to lodge FIR. What would be happening in other cases, which are not brought to the notice? It has been brought to the notice of this Court that the complainant in this FIR Malik Arshad Mahmood has also now become accused in this case and has been granted pre-arrest bail. This is a fit case, which requires further inquiry into the guilt of the present Applicant. He is in jail since 21-6-2007. Charge has not yet been framed. His involvement in the offence is contributory in nature as many others by making contributions have succeeded in getting release at the police station level. In such circumstances, I hold that this is a fit case for grant of bail.

In view of the above discussion, I grant bail to the Applicant in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the trial Court.

The observations made by me herein-above are tentative in nature and the trial Court should not be influenced by it. The trial Court should decide the case on merits according to the evidence produce before it by the prosecution as well as by the defence.

                                                              Judge