2014 P Cr. L J 449
[Balochistan]
Before Muhammad Ejaz Swati, J
KHAN MUHAMMAD and others ---Applicants
Versus
The STATE---Respondent
Criminal Bail Applications Nos.583 and 592 of 2013, decided on 29th November, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497 (1) ---Bail---Offences not falling under prohibitory clause of S.497, Cr.P.C.---Scope ---
Even in respect of offences not falling under prohibitory clause of S.497, Cr.P.C., the Court may
decline to admit accused on bail, if t here exist recognized exceptional circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss. 408 & 409---Prevention of Corruption Act (II of
1947), S. 5(2) ---Criminal breach of trust, misappropriation and ille gal gratification ---Bail, refusal
of---Accused were holding public offices and were entrusted with duty to ensure that arms and
ammunitions kept in Police Lines, was for the purpose of protection and safeguard the life and
property of public at large ---Huge quantity of arms and ammunition missing from law -enforcing
officials not only made accused liable for breach of trust and misappropriation but the incident
had also endangered public peace and tranquillity ---Missing arms and ammunitions were not
recovered and apprehension of its misuse could not be ruled out ---Responsibilities of accused as
per their designation was a matter of evidence---Prima facie, there was sufficient evidence on
record to connect accused with commission of offence ---Bail was refused in circumstances.
Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.
H. Shakil Ahmed for Applicant (in Criminal Bail Application No.583 of 2013).
Abdul Karim Malghani for the State (in Criminal Bail Application No.583 of 2013).
W.N. Kohli for Applicants (in Criminal Bail Application No.592 of 2013).
Abdul Karim Malghani for the State (in Criminal Bail Application No.592 of 2013).
Date of hearing: 22nd November, 2013.
JUDGMENT/ORDER
MUHAMMAD EJAZ SWATI, J. ---By this common order, I intend to dispose of the
above two bail applications related to the same incident.
2. The facts of the case, arising out from F.I.R. No. 24 of 2012 lodged with Police Station,
Barkhan under sections 408, 409, P.P.C. read with section 5(2), ACT -II of 1 947 on 27th
November, 2012 on the report of Khan Muhammad, ASI are that despite posting of Nida Ullah,
ASI as Kot Incharge of Police Line, Barkhan on 4th July, 2012, the applicant Shah Muhammad
lingered on the handing over of the charge to him. The applica nt Shah Muhammad did not return
to his duty after 11th July, 2012 and he was marked absent from 12th July, 2012 and the high
officials were informed about the wilful absence. After due notice, he was suspended. It is
further mentioned in the F.I.R. that the DSP Muhammad Asif in compliance of directives of high
officials after breaking the lock of Kot Room prepared a report, wherein following Arms and
Ammunition was found missing: --
S. No. Kind of arms Body No. S. No. Kind of arms Body No.
(1) Rifle G -3 J19350 2 Rifle G -3 J19922
3 Rifle G -3 J19926 4 Rifle G -3 J19923
5 Rifle G -3 J19925 (1) SMG 5210150
2 SMG 5204491 3 SMG 521058
4 SMG 5208478 5 SMG 5212296
6 SMG 5211851 7 SMG 5211750
8 SMG 5210945 9 SMG 5209966
10 SMG 5210745 11 SMG 5209486
12 SMG 5209214 13 SMG 5209701
14 SMG 5208736 15 SMG 5211723
16 SMG 5209626 17 SMG 5211145
18 SMG 5209709 19 SMG 5210860
20 SMG 5210972 21 SMG 5207509
22 SMG 5209880 23 SMG 5209184
24 SMG 5212421 25 SMG 5212188
26 SMG 5209044 27 SMG 5205870
(1) Rounds SMG 1699 2 Magazines
SMG 54
3 Badolier SMG 11 4 Rounds G -3 61
5 Magazines G -3 03 6 Bandolier G -3
riffle 02
7 Rounds
LMG/Bren Gun 613 8 Charger LMG 129
3. Initially, the F.I.R. was registered against the applicant Shah Muhammad 8/HC and after
inquiry, the applicant Khan Muhammad (Criminal Bail Application No.583 of 2013) was also
arrested for committing misappropriation and criminal breach of trust.
4. The applicants' bail application was declined by the learned Special Judge Anti -
Corruption Balochistan, Quetta on 1st November, 2013 and 18th November, 2013.
5. The learned counsel for the applicant Shah Muhammad mainly contended that the
applicant being Kot Incharge has nothing to do with the distribution and movement of arms; that
the applicant remained absent since 12th July, 2012 and in his absence, the lock was broken and
there exists no reasonable ground to connect the applicant in the commission of offence; that the
matter related to entrustment and responsibility of applicant is yet to be determine d, therefore, it
is fit case of further inquiry; that the trial Court while rejecting the bail application determined
the case on merit, which is not permissible under the law; that the offences do not fall in
prohibitory clause of section 497, Cr.P.C.
6. The learned counsel for the applicant Khan Muhammad sought bail on the ground that
the contents of F.I.R. itself reflect the bona fide intention on the part of applicant; that the
applicant being line officer had informed the higher officials about the w ilful absence of Kot
Incharge and thereafter committee was assigned to break the lock of Kot Room. Had the key of
the Kot Room was supposed to be with the applicant; the lock would have not been broken; that
tenable material on record indicates the innocen ce of the applicants; that the relevant rule related
to responsibility of Kot Incharge further exonerates the applicant from any entrustment or
responsibility; that the case of applicant is of further inquiry and after completion of
investigation no purpos e left to keep him behind the bars; that other co- accused have been
released on bail and on the basis of rule of consistency, the applicant is also entitled to be treated
on the same footing.
The learned State counsel opposed the application by submitti ng that sufficient material
in the form of inquiry has been collected during investigation to conclude that the applicants do
not deserve concession of bail; that the applicants are prima facie connected with the commission
of offence.
7. Having heard th e learned counsel for the parties. It is admitted that the applicant Shah
Muhammad was posted as Kot Incharge and the applicant Khan Muhammad as line officer in
Police Line, Barkhan. The management of arms and ammunitions, its distribution and
movement, is codified under the relevant rules and regulations. The facts related to missing of
arms and ammunitions from the Kot Room of Police Line, Barkhan is not disputed. The
contention of learned counsel that the offences do not fall within the prohibitory claus e of section
497, Cr.P.C. and no fruitful purpose would serve to keep the applicant behind the bars after
completion of investigation. In this regard, it may be observed that by now it is well -settled
proposition of law, that even in respect of offences not falling under prohibitory clause of section
497, Cr.P.C., the court may decline to admit an accused on bail, if there exists a recognized
exceptional circumstances. The instant case does not involve an ordinary criminal matter. The
applicants were holding public offices and they were entrusted with the duty to ensure that the
arms and ammunitions kept in Police Line, Barkhan was for the purpose of protection and
safeguard the life and property of public at large. The missing of huge quantity of arms and
ammunitions from the law enforcing officials not only made them liable for breach of trust and
misappropriation but above incident has endangered the public peace and tranquillity.
8. In the present case, the missing of arms and ammunitions have also not been recovered so
far and the apprehension of its misuse in the prevailing circumstances cannot be ruled out. The
responsibilities of applicants as per their designation, is a matter of evidence. Prima facie there is
sufficient evidence on record to connect the applicants with the commission of offence, as such
in such- like cases, the applicants are not entitled for grant of bail in view of dictum laid down by
the Hon'ble Supreme Court in the case titled (Imtiaz Ahmed v. the State) reported in PLD SC
545 held as under: --
"It may observe that a distinction is to be made between an offence which is committed
against an individual like a theft and an offence which is directed against the society as a whole
for the purpose of bail. Similarly, a dist inction is to be kept in mind between an offence
committed by an individual in his private capacity and an offence committed by a public
functionary in respect of or in connection with his public office for the aforesaid purpose of bail.
In the former case s, the practice to allow bail in cases not falling under prohibitory clause of
section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the
latter category, the Courts should be strict in exercise of discretion of bail. In my view, the above
category of the offenders belongs to a distinct class and they qualify to be treated falling within
an exceptional circumstance of the nature warranting refusal of bail even where maximum
sentence is less than 10 years' R.I. for the off ence involved provided the Court is satisfied that
prima facie, there is material on record to connect the accused concerned with the commission of
the offence involved."
9. In the present case, I would not like to comment at this stage about the merits of the case.
Any observations made hereinabove, are tentative in nature, which shall not effect the merits of
the case. The trial Court while dismissing the bail application of applicants, exercised
jurisdiction, which has not been found to be arbitrary or against the law declared.
For what has been discussed above, I find no merits in these applications, which are
dismissed.
MH/122/Bal. Application dismissed.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,
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