' 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, Quetta 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 absolutely 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 contrary, 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 (I)."
"S. 39-4. Penalty for installation of artificial means etc.
(1) Whoever installs or uses any device, contrivance or artificial means for dishonest abstraction, 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 investigation 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 clause 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 relevant 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) offence's 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 lqbal v. Ilibthammad Anwar, 2009 SCM R 1488, it has 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 same 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.
Bail allowed.
2014 P Cr. I. J 52 [Lahore] Before Shahid Bilal Hassan, J AMAR UL HASSAN ZIKRIA---Petitioner versus ADDITIONAL SESSIONS JUDGE and others---Respondents Writ Petition No,3479 of 2011/BWP, decided on 16th May, 2013.
Criminal Procedure Code (V of 1898)- ----Ss. 154, 22-A & 22-B--- Constitution of Pakistan, Art.199--- Constitutional petition--- Cognizable offence--- Registration of complaint---Preliminary inquiry---Scope---Grievance of petitioner was that inquiries were allegedly held wherein accused was found innocent and stance of petitioner was found incorrect, despite the fact that serious allegations had been levelled against accused and wrong doers---Validity---All such acts by authorities denying petitioner his lawful right were unwarranted under the law---Police officials, at the very outset were bound to see as to whether a cognizable office was made out from bare reading of petition or not---As cognizable offence was made out, therefore, police officials were not under the law, bound to hold a preliminary inquiry as to the correctness or otherwise of allegations---From bare reading of complaint of petitioner, cognizable office was made out under the relevant provisions of law and police was bound to register criminal case against wrong doers---High Court directed police to register a case against accused and conduct investigation strictly in accordance with law--- Petition was allowed in circumstances. 571 A & B Muhammad Basir v. SHO and others PLD 2007 SC 539; Ghulam Farid v. S.H.O. And others 2013 PCr.LJ 117 and Mst. Sulima v. Government of Sindh through Secretary Home Department and 14 others 2013 PCr.LJ 100 rel. Mrs. Kausar Iqbal Bhatti for Petitioner. Manzoor Ahmad Warraich, learned AAG. Muhammad Yasin, AS1.
Zeeshan Haider for Respondent No,4. Ghulam Mohy Ud Din SHO in person. ORDER ' SHAHID BILAL HASSAN, J.---Through this constitutional petition, the petitioner has sought direction to the respondent No,2 so as to register a criminal case against respondent No,4/SHO Police Station City C-Division, Rahim Yar Khan and five other persons and to act strictly in accordance with law.
2. Factually speaking prior to approaching this court, the petitioner approached the learned Additional Sessions Judge/Justice of Peace, through an application under section 22-A/22-B of Cr.P.C. For redressal of the same grievance as mentioned above. On the said application, after all the requisite procedure the learned Addl. Sessions Judge/Justice of Peace, Rahim Yar Khan was pleased to dispose of the application vide order dated 8-2-2010 as follows:-- "As per allegations contained in the petition, respondent No,3 along with five unknown persons entered into house of petitioner forcibly and took away his brother Noman Hassan Zakriya forcibly.
Although the SHO Police Station City A-Div. Rahim Yar Khan has reported that by orders of District Coordination Officer, Rahimyar Khan dated 1-2-2010, regarding detention of Noman Hassan Zakriya, petitioner's brother, for thirty days, he was arrested from Church Road, Rahim Yar Khan and no one entered into house of petitioner, but in view of seriousness of allegations of allegedly trespassing into house of petitioner by police officer along with five unknown persons, the petitioner is directed to approach the District Police Officer, Rahim Yar Khan and move complaint to him, and DPO, Rahim Yar Khan is directed to proceed with the complaint of petitioner in accordance with law. This petition is disposed of accordingly. File be consigned to record room after its due completion."
' The said order dated 8-2-2010 passed by learned Additional Sessions Judge/Justice of Peace, Rahim Yar Khan was not complied with and hence this constitutional petition before this Court.
3. The learned counsel, in support of this writ petition, has stated that the matter was promptly and duly reported to the SHO, Police Station City A-Division, Rahim Yar Khan and an application for registration of F.I.R. Was also submitted but the police officials did not look into the matter which they were bound to do under the law leaving the petitioner with no other option but to approach the learned Ex-Officio Justice of Peace/Sessions Judge, Rahim Yar Khan, who was pleased, after following requisite procedure, to refer the matter to the police officials as there were serious allegations levelled in the petition on the basis of which cognizable offence was made out. Further adds that from bare reading of the petition of the petitioner a cognizable offence is made out but the respondents/police officials are reluctant to register a case against the wrong doers who also happen to be their colleagues i,e, police officials. Further adds that the Ex-Officio Justice of Peace is only required to pass an order on receiving of an application after being satisfied that cognizable offence is made under the provisions of section 154, Cr.P.C. Against the wrong doers or not. Further adds that the powers conferred upon Ex-Officio Justice of Peace are non-judicial but administrative in nature. Lastly adds that under no circumstances of law, preliminary inquiry is required to be held before lodging the F.I.R., which is against the mandate of law.
4. Learned counsel for the respondent No, 4 has strongly opposed this petition as according to the stance taken by the said respondent, the respondent No,4 raided the house of the petitioner so as to arrest Maulvi Noman Hassan Ludhianvi and detain him for 30 days in District Jail, Rahim Yar Khan under section 10(3) of Maintenance of Public Order Ordinance, 1960 and it was in connection with the said order by the high ups that the respondent No,4 raided the house of the petitioner and needful was also done. Further states that on the application of the petitioner under sections 22-A, 22-B, Cr.P.C. Before the learned Justice of Peace and in compliance of the order of said Court dated 8-2-2010, an inquiry was conducted and vide report dated 16-3-2010, it was declared that no such occurrence as alleged by the petitioner, took place. The said inquiry was conducted on the instruction of the District Police Officer who appointed DSP, City Circle as Inquiry Officer. Further adds that there was another inquiry where respondent No, 4 was charge-sheeted and after following the whole requisite procedure the respondent No,4 was declared innocent and was exonerated. Lastly states that there was nothing personal between the respondent No,4 and the petitioner as he performed his duties purely in accordance with law and on the dictates of the high ups/Senior Officials.
5. I have heard both the learned counsel for the parties and perused the record available before me.
6. From the perusal of the application referred to by the petitioner, he has alleged that on 1-2-2010 at about 6-00 p.m. He was present at his house with his family members including female family members where six persons armed with deadly weapons wearing white dresses knocked the door of the petitioner and forcibly entered into the house and on query they flared up and forcibly trespassed the house, ruined the sanctity and prestige of family/womenfolk while entering into the residential room forcibly. These allegations levelled have been given in detail in the application by the petitioner and after going through all the said allegations being serious with regard to trespassing into the house of the petitioner, the learned Justice of Peace/Additional Sessions Judge directed to proceed with the complaint of the petitioner and the said order dated 8-2-2010 was not complied with. Interestingly, on the application for initiating legal proceedings against the respondent No,4 and others, the police officials are holding inquiries which is altogether against the dictates of law as in the case of Muhammad Bashir v. SHO, etc. Reported as PLD 2007 SC 539, it has been held by the Hon'ble Supreme Court that no authority vested with an Officer Incharge of the police station or with anyone else to hold an inquiry into the correctness or otherwise of the information which was conveyed to the SHO for the purpose of recording of an F.I.R. Further the Hon'ble Supreme Court has observed "any F.I.R. Registered after such exercise i,e, determination of the truth or falsity of the information conveyed to the SHO would get hit by the provisions of section 162, Cr.P.C. Existence of an F.I.R. Was no condition precedent for holding an investigation nor was the same a prerequisite for the arrest of a person concerned with the commission of cognizable offence; nor does recording of an F.I.R. Mean that the S.H.O. Or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested--- Check against lodging of false F.I.Rs, was not refusal to record such F.I.Rs,, but punishment of such informants under S.182, P.P.C. Etc. Which should be if enforced, a fairly deterrent against misuse of the provisions of 5.154, Cr.P.C." Further the Hon'ble Supreme Court in the said judgment in Para No,27 observed and held as under:-- "The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are as under:--
(a) no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. Where the information conveyed, disclosed the commission of a cognizable offence;
(b) no authority vested with an Officer Incharge of Police Station or with any one else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the S.H.O. For the purposes of recording of an F.I.R.
(c) any F.I.R. Registered after such an exercise i,e, determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C.
(d) existence of an F.I.R. Is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence;
(e) nor does the recording of an F.I.R. Mean that the S.H.O. Or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused nominated therein must be arrested; and finally that,
(f) the check against lodging of false F.I.Rs, was not refusal to record such F.I.Rs, but punishment of such informants under S. 182, P. P. C. Etc. Which should be, if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr. P. C. "
7. With utmost respect, in this case the respondents have not followed the requisite procedure laid down by the Hon'ble Supreme Court in the judgment referred to above as on the application of the petitioner, inquiries have allegedly been held wherein respondent No,4 has been found innocent and the stance of the petitioner has been denied despite the fact that serious allegations have been levelled against the respondent No,4 and the wrong doers. All these acts by the respondents denying the petitioner his lawful right are unwarranted under the law in the light of said judgment of the Hon'ble Supreme Court, as the police officials at the very outset were bound to see as to whether a cognizable offence is made out from the bare reading of the petition or not. Here in this case, a cognizable offence is made out. The police officials were not, under the law, bound to hold a preliminary inquiry as to the correctness or otherwise of the allegations. Similar view has been given in the case of Ghulam Farid v. S.H.O. Etc. Reported as 2013 PCr.LJ 117; it has been held by the Hon'ble Sindh High Court as under:- "Station House Officer (SHO) of Police holding inquiry to assess correctness of information provided by complainant---Legality--No provision in any law, including Ss.154 and 155, Cr.P.C., authorized an Officer Incharge of the Police Station to hold any inquiry to assess the correctness or falsity of the information received by him before complying with the mandatory requirement of reducing the information into writing irrespective of the fact whether such information was true or not."
' Again similar view has also been given in case Mst. Sulima v. Government of Sindh, through Secretary Home Department and 14 others (2013 PCr.LJ 100 Sindh).
8. Therefore, for all intents and purposes, the petitioner's case is a fit case wherein from the bare reading of the complaint of the petitioner, cognizable offence is made out under the relevant provisions of law and the police are bound to register a criminal case against the wrong doers. In the given circumstances, this writ petition is allowed with the direction to the respondents/police officials to register a case against the respondent No,4 and concerned strictly in accordance with law.