2014 P Cr. L J 48
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
KHAN MUHAMMAD---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.407 of 2013, decided on 21st August, 2013.
Criminal Procedure Code (V of 1898) ---
----Ss. 403 & 497---Penal Code (XLV of 1860), S. 379---Prevention of Corruption Act (II of
1947), S. 5(2) ---Electricity Act (IX of 1910), Ss.39 & 39 -A---Constitution of Pakistan, Art.13---
Theft, illegal gratification, theft of energy and installation of ar tificial means ---Bail, grant of ---
Imprisonment or fine ---Double jeopardy, principle of ---Accused was arrested for stealing
electricity from pole through direct connection ---Accused had been in custody since 25- 7-2013,
investigation was completed and he was no more required for the purposes of further
investigation or interrogation ---One of the factors for detaining accused was necessity of
custodial interrogation and the same did not subsist any more ---When an offence was also
punishable with fine only, the n accused was entitled to bail as of right because if at trial he was
sentenced with fine only, then as undertrial prisoner, refusal of bail would amount to a case of
double jeopardy which was in contravention of Art.13(a) of the Constitution and also embodied
the provision of maxim nemo debt bis vexari pro eadem causa (No person should be twice
disturbed for the same cause) as well as S.403, Cr.P.C. because at the end of the day, if accused
was sentenced with fine alone, then it would not be possible to compensate him for his detention
in judicial lock up during trial ---Continued custody of accused in jail was not likely to serve any
beneficial purpose at such juncture ---Concession of bail should not be withheld by way of
premature punishment ---Bail was all owed in circumstances.
Tariq Bashir v. The State PLD 1995 SC 34 and Zafar Iqbal v. Muhammad Anwar 2009
SCMR 1488 ref.
Abdul Hayee for Applicant.
Miss Sarwat Hina, Additional P. -G. for the State.
Date of hearing: 19th August, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this application, filed under
section 497 of the Criminal Procedure Code, 1898 (Cr.P.C), applicant Khan Muhammad son of
Khair Muhammad, seeks post -arrest bail in Crime No.11 of 2013 dated 25th July, 2013, under
section 379 of the Pakistan Penal Code, 1860 (P.P.C.), section 5(2) of the Prevention of
Corruption Act, 1947 (the "Act of 1947") read with sections 39 and 39- A of the Electricity Act,
1910, registered at Federal Investigation Agency (FIA) Police Station, Quet ta on the report of
one Nisar Ahmed Baloch Assistant Director, FIA Quetta.
2. I have heard the learned counsel for the parties and also perused the record available to
me with their valuable assistance and observed that the allegations levelled against the applicant
are to the effect that on the fateful day i.e. 25th July, 2013, he was found stealing electricity from
pole through a direct connection by the Incharge Anti -Electricity Theft Task Force (AETTF). It
was further alleged that, at the time of raid , the electricity was being stolen directly from the pole
through one connection, whereas the second domestic connection of type A -I was being used for
commercial purposes without permission of the competent authority. The said connections, being
found abs olutely illegal and unauthorized, were removed with the help of Quetta Electric Supply
Company (QESCO) employees and taken into possession by the AETTF through seizure memo.
3. Mr. Abdul Hayee, learned counsel for the accused/applicant, contended that the applicant
is innocent and, being a tenant in the said premises, was unaware of the nature of electricity
connections and he has been falsely involved in the instant case with mala fide intention just to
save the skin of owner of the premises in question from the clutches of law. He further submitted
that the provision of section 5(2) of the Act of 1947 does not attract in the peculiar circumstances
of the case, whereas the other offences, for which the accused/ applicant is charged, are bailable
in nature , being also punishable with fine only. While concluding his arguments, he further
submitted that the investigation of the instant case has been completed and the applicant is no
more required for further investigation or interrogation.
4. On the contrar y, Miss Sarwat Hina, learned Additional Prosecutor -General (APG), while
defending the bail refusing order dated 7th August, 2013, passed by the learned Special Judge
Anti-Corruption Balochistan, Quetta (the "trial Court"), submitted that the applicant is nominated
in the F.I.R. and there is sufficient evidence available on record to establish the complicity of the
applicant with the commission of the alleged offence, thus, he is not entitled for the concession
of bail.
5. Before dilating upon the rival contentions, raised by the learned counsel for the parties, it
would be advantageous to reproduce herein below the offences, for which the accused/applicant
is charged and the punishment provided therein, which read as under: --
"379. Punishment for theft. Whoever commits theft shall be punished with imprisonment
of either description for a term which may extend to three years, or with fine, or with both."
"5(2). Any public servant who commits or attempts to commit criminal misconduct shall
be punishable with imprisonment for a term which may extend to seven years, or with fine, or
with both."
"S.39. Theft of energy. (1) Whoever dishonestly abstracts, consumes or uses energy shall
be punished with imprisonment of either description for a term which may extend to three years,
or with fine which may extend to five million rupees, or with both; and the existence of any
device, contrivance or artificial means for such abstraction, consumption or use.
(2) Whoever abets, or conspires in, the commission of acts mentioned in subsection (1)
shall be deemed to have committed an offence under subsection (1)."
"S. 39- 4. Penalty for installation of artificial means etc. (1) Whoever installs or uses any
device, contrivance or artificial means for dishonest abstr action, consumption or use of energy of
a licence, whether he derives any benefit therefrom or not, shall be punished with imprisonment
of either description for a term which may extend to three years, or with fine which may extend
to five million rupees, or with both; and if it is proved that any device, contrivance or artificial
means for such abstraction, consumption or use exists or has existed on a premises, it shall be
presumed, unless the contrary is proved, that such person has committed an offence under this
subsection."
(2) Whoever abets, or conspires in, the commission of any act mentioned in subsection
(1) shall be deemed to have committed an offence under that subsection."
4(sic.) Considering the arguments advanced by the learned counsel for the parties and keeping in
view the facts and circumstances of the case, I have noted that the applicant is in custody since
25th July, 2013. The investigation has been completed and the applicant is no more required for
the purposes of further investiga tion or interrogation and, therefore, one of the factors, for
detaining the applicant, being the necessity of custodial interrogation, does not subsist any more.
5(sic.) It is not disputed that the ingredients of offence under section 5(2) of the Act of 1947,
invoked in the F.I.R., allegedly, committed by the applicant, do not attract, whereas the
remaining offences do not fall within the purview of prohibitory cla use as contained in
subsection (1) of section 497 of the Cr.P.C. and grant of bail in such -like cases is a rule and
refusal is an exception as has been held by Hon'ble Supreme Court of Pakistan in the case of
Tariq Bashir v. The State PLD 1995 SC 34, the r elevant portion whereof reads as under: --
"It is crystal clear that in bailable offences the grant of bail is a right and not favour,
whereas in non- bailable offences the grant of bail is not a right but concession/grace. Section
497, Cr.P.C. divided non- bailable offences into two categories i.e., (i) offences punishable with
death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with
imprisonment for less than ten years. The principle to be deduced from this provision of law is
that in non- bailable offences falling in the second category (punishable with imprisonment for
less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be
declined only in extraordinary and exceptional cases, for example---
(a) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution
evidence;
(c) where there is danger of the offence being repeated if the accused is released on
bail; and
(d) where the accused is a previous convict."
Similarly in the case of Zafar Iqbal v. Muhammad Anwar, 2009 SCMR 1488, it as held that: --
"The Courts, in such- like cases where offence falls within the non -prohibitory clause,
consider favourably by granting bail, as a rule but decline to do so in the exceptional cases. As
far as exceptional circumstances are concerned those are to be taken into consideration
depending upon each case."
6(sic.) I am also in agreement with the learned counsel for the accused/applicant that the
remaining offences, invoked in the F.I.R., are bailable in nature, because the law also provides
alternative sentences, which may fine alone. It is by now settled that when an offence is also
punishable with fine only, then, the accused shall be entitled to bail as of right because if at the
trial he is sentenced with fine only, then the period as undertrial prisoner due to refusal of bail
shall amount to a case of double jeopardy. Similarly, while dealing with such- like cases , the
refusal of bail would also be in contravention of Article 13(a) of the Constitution of Islamic
Republic of Pakistan, 1973, which embodies the provision of the maxim nemo debt bis vexari
pro eadem causa (No person should be twice disturbed for the sam e cause) as well as section 403
of the Cr.P.C., because at the end of the day, if the accused is sentenced with fine alone, then it
would not be possible to compensate him for his detention in judicial lock up during trial. It is
also worth- mentioning that in such state of affairs, continued custody of the applicant in jail is
not likely to serve any beneficial purpose at this juncture. Even otherwise, the concession of bail
ought not to be withheld by way of premature punishment.
7. For the reasons discussed above, without touching deep merits or demerits of the case, I
accept this application and grant bail to the applicant, subject to furnishing surety bail bond to
the tune sum of Rs.100,000 (Rupees hundred thousand only) with one surety and PR bond of the
like amount to the satisfaction of the trial Court.
These are the reasons of my short order dated 19th August, 2013, announced in the open
Court.
MH/87/Bal. Bail allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.