1. ' Mrs. YASMIN ABBASEY, J.---By this order I intend to dispose of two bail applications moved by applicants Akhlaq Ahmed and Mohiuddin Sharif booked under one F.I.R. No,56/05 by P.S.A.C.E.
2. Karachi.
3. ' Facts leading to these bail applications bearing Nos.1125 of 2005 and 1126 of 2005 filed by applicants, Akhlaq Ahmed and Mohiuddin Sharif, are that after receiving information that accused Mohiuddin Sharif in collusion with one retired officer of Karachi Building Control Authority, namely, accused Akhlaq Ahmed, is guilty of misconduct, corruption and misuse of power, a raid was conducted against both accused persons resulting in recovery of public files. They were arrested in the matter.
4. ' Prosecution case is that accused Akhlaq Ahmed in connivance with then Chief Controller of Buildings, Brigadier (Retd.) A.S. Nasir, the absconder-accused, was performing his duties to be as Controller of Buildings whereas accused Mohiuddin being P.A. Was projecting accused Akhlaq Ahmed in general public as Controller of Buildings, just to earn illegal money by misusing illegal protection given to him. This conduct of both accused persons in collusion with the absconder accused, Brigadier A.S. Nasir, had created hardship to the provincial government as well as to the public in general.
5. ' It is reported that accused Akhlaq Ahmed who was appointed on contract basis on 28-6-2003 even after termination of his contract with the connivance of higher officials of KBCA was not only conducting official work but handling sensitive files without any lawful authority. These files are said to have been recovered in that raid from the private office and house of accused Akhlaq Ahmad having No,D-69, Block-B, North Nazimabad, Karachi, After recovery case under sections 120B, 161, 162, 163, 409, 420, 468, 471, 34 P.P.C. Read with section 5(2) Act-II/1947, under Crime No,56/05 was registered at P.S. ACE Karachi.
6. ' It is contended by Mr. I.A. Hashmi learned counsel for accused Akhlaq Ahmed that though the applicant has been accused in the matter but contents of the F.I.R. Do not disclose any transaction dealt with by him during the course of his posting nor any misappropriation of government property is on the record. According to him, applicant Akhlaq Ahmed because of meritorious qualifications and capabilities was appointed even after retirement and was taken on contract basis on 28-6-2003 as COB Coordinator, Enquires and Special Assignment, KBCA. To highlight the extraordinary qualities of accused Akhlaq Ahmed, learned counsel has referred Annexures E to H the documents showing the services of accused Akhlaq Ahmed acquired in different sort of exhibitions. It is contended that in spite of such responsibilities and assignment given to the applicant, he has been falsely involved in the matter with no reason. It is pleaded that files were shown to have been recovered form the possession of the accused from his office and house in presence of certain witnesses but not a single person out of them have been taken as mashir of incident which is a gross violation of section 103 Cr.P.C. In sport of his contention the learned counsel has relied on a number of authorities.
7. ' With due respect to the observations made in the cited cases, it too an undisputed observation of apex Court that each case is to be looked into and examined in the circumstances of its own facts.
8. So if for one reason or other strict compliance of section 103 Cr.P.C. Is not done it will ipso facto not discard the very existence of any fact or recovery.
9. ' The object of enacting section 103 Cr.P.C. Is to guard against possible chicanery and unfair dealing on the part of officers entrusted for the purpose, but non-compliance of same does not mean that the statement of police officers should not be accepted in no circumstances.
10. ' Their and is as good as that of a person taken from general public until and unless their veracity is challenged and found to be not in conformity.
11. ' Controverting the defence pleaded by learned counsel for applicants, learned A.A.-G. Has placed on record certain documents in order to prove that the service of applicant Akhlaq Ahmed was terminated on 6-8-2005 but in spite of termination Notification dated 8-6-2005 by the Chief Secretary, he was working on the seat not assigned to him without any legal authority. To attain their illegal object of earning illegal money with the active connivance of Brigadier (Retd.) A.S. Nasir the Chief Controller of Buildings, accused Akhlaq Ahmed was availing all facilities and privileges of Controller of Buildings. To support his arguments, he has placed a complaint made by Ardeshir Cowasji to different authorities narrating the same facts as pleaded by him with the addition that taking benefit of his position accused Akhlaq Ahmed in collusion with Brigadier (Retd.) A.S. Nasir, absconding accused was bargaining with the builders and parties and was earning illegal gratification.
12. ' Without prejudice to the merits of case to be considered at trial stage the fact that after retirement from service on 15-12-2001, accused Akhlaq Ahmed was taken up again in K.B.C.A.
13. Through Notification dated 28-6-2003 and was then terminated on 8-6-2005, is an undisputed position. But even after this termination the role played by absconding accused. Brigadier (Retd.)
14. A.S. Nasir to have the presence of accused Akhlaq Ahmed in the premises of K.B.C.A. Is an undebatable fact which is brought on record by learned counsel for applicant himself by placing letter dated 16-9-2005 written by Brigadier (Retd.) A.S. Nasir to Secretary S&GAD. The contents of this letter show that when direction to take step against illegal petrol pumps was given to Brig. A.S. Nasir by Chief Secretary, he had no other person than to accused Akhlaq Ahmed in the whole K.B.C.A. Who according to Brig. (Retd.) A.S. Nasir could accomplish that difficult job in spite of the fact that he had no role in K.B.C.A. And was doing all these jobs in private capacity which gives strength to prosecution case. The allegation of fraudulent artifice in between Brig. (R) A.S. Nasir and accused Akhlaq Ahmed are also appearing from one another letter dated 21-10-2005 written by Brig. (R) A.S. Nasir wherein in spite of termination of contract of accused Akhlaq Ahmed on 8-6- 2005, he was again employed by Brig. (R) A.S. Nasir as a focal person without pay on an Exhibition named as Enlightened Modernisation Exhibition.
15. The happening incidents occurred during the period show that the act charged against both accused were part of a series of similar nature of acts done by them during the period mentioned in F.I.R. Accused Akhlaq Ahmed with the helping hand of accused Mohiuddin and under the protection of absconder accused Brig. (R) A.S. Nasir was dealing with government property and files. It is a matter of public nature wherein safety and security of public property cannot be overlooked merely on technical grounds. As a rule the duties of such persons are of a highly confidential character, including great power of control over the property entrusted to them, and a breach of trust by such persons may often induce serious public and private calamity.
16. ' Learned counsel for applicant, Akhlaq Ahmed has also sought bail on the ground of sickness.
17. According to him accused is suffering from heart disease and high blood pressure, test reports placed on record somehow supports his version but the documents as produced does not disclose that the nature of illness is not of such serious nature to make out a ground for grant of bail. Case referred by learned counsel for applicants as 1998 SCMR 487 is on different footing and is not applicable in matter.
18. ' Mr. Muhammad Saleem Samo, learned counsel for applicant Mohiuddin Sharif in Criminal Bail No,1126/05 has adopted same argument of Mr. I.A. Hashmi with addition that no charge of regularization or misappropriation of K.B.C.A. Property has been alleged against the applicant Mohiuddin Sharif and the F.I.R. Is silent with regard to the role assigned against him for commission of the offence, which have been considered foregoing paras.
19. In view of above discussion at the moment, without prejudice to the merits of case, from the documents placed on record. I do not find any sufficient ground for the grant of bail hence both bail applications bearing Nos.1125 and 1126 of 2005 are hereby IC rejected.
20. Applications rejected.