SHAHID .HAMEED DAR, J.---The petitioners, Malik Javed and Malik Pervez seek pre-arrest bail, as they apprehend their arrest by the police in case-FIR No.778/2013, dated 3-7-2013, under section 462-C, P.P.C., Police Station Baghbanpura, Lahore.
2. In fact, the petitioners are not named in the FIR and what we learn therefrom is, that the area allegedly dug-up by the raiding party, headed by Shah Nawaz Khan, Superintendent Admit, Sui- Gas Office Gulberg, Lahore (complainant) to unearth unauthorized supply of gas to a factory/foundry, belonged to Khawar Sadiq, the owner of Malik Steel Re-rolling Mills and Saifullah accused, who was arrested by, the police then, was apparently shown his employee/representative; according to the allegations, the raiding party on digging the place discovered that Malik Steel Re-rolling Mills committed theft of gas through a no-returnvalve, fixed on a 4" dia. Pipeline which connected the factory and the spot where said valve had been fixed, through an underground tunnel; Khawar Sadiq was booked in this case for the said charge and his consumer number was mentioned in the FIR as 6170741000 the raiding party removed and took into possession the no-return valve and consumer meter station (CMS) from the spot, as is evident from the record.
3. The complainant allegedly rendered a supplementary statement, the same day, whereby he corrected himself by mentioning that the spot which had been dug-up by the raiding party was situated in close proximity of Malik Steel Re-rolling Mills, which was owned by Malik Javed and Malik Pervaiz accused, and it were they, who had committed theft of gas at a large-scale and incurred huge loss to the national exchequer, which ran into millions of rupees. Zahid Mahmood, Halqa Patwari was recorded as a witness in this case by the Investigating Officer, who through his statement under section 161, Cr.P.C. Verified the fact from the revenue record, that the site of crime belonged to the accused/petitioners.
4. Learned counsel for the petitioners submits that the petitioners are certainly not named in the FIR nor they have any link with the crime alleged and they have been falsely involved in this case under a conspiracy so as to save Khawar Sadiq, who was an influential person of the area and a known sympathizer of the ruling party; the FIR has been lodged with precise details vis-a-vis, the names of the accused, the consumer number, the nomenclature of the Steel Re-Rolling Mills and removal of no-return valve and consumer meter station (CMS) etc. Which left little doubt that the offence had been committed by Khawar. Sadiq and not by the petitioners; the area allegedly dug by the raiding party is at a distance of 600 to 1100 ft. From the petitioners' factory and no such pipeline, with an alike length, had been taken into custody by the police from the spot; the petitioners though, have been served with a detection bill of Rs. 59 millions, yet they have no liability whatsoever in this regard to pay it; the petitioners on the day of the alleged occurrence, as admitted by the other side, were not within the country and their plea in this respect had been verified by the Investigating Officer during the course of investigation; the petitioners so far as facts of the case are concerned, are stranger herein and their case is hardly distinguishable from the case of Saifullah, who has already been granted bail by the learned trial court vide order dated 8- 7-2013; lastly submits that the petitioners case constitutes need for further probe into their guilt, therefore, they may be saved from the lurking danger of being arrested at the hands of the hostile police. Relies on case titled Dr. Muhammad Riaz Akhtar alias Dr. Shahid v. The State and another (2012 SCMR 1685),
5. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant opposes this petition with the submission that the facts regarding involvement of Khawar Sadiq accused, as mentioned in the FIR, were based on an innocent misunderstanding/omission on the part of the complainant; the attending circumstances of the case, including geographical position of the area and the documentary evidence clearly hinted at direct involvement of the petitioners in this case; the area dug-up by the raiding party to uncover theft of gas was at a distance of a few yards from the factory of the accused/petitioners and it is not correct that their factory was 600 to 1100 ft. Away from the dug-up spot; the petitioners themselves filed some suits before different civil courts, wherein, they mentioned detailed particulars of their factory(-ies), which assimilate the ones, as mentioned in the FIR; the last suit filed by them in this regard also contained description of the alleged occurrence, as given in the FIR and they have categorically admitted that the said area belonged to them; Saifullah accused, on many occasions, represented the petitioners before the SW-Gas officials and documentary evidence in this regard is available; the petitioners have the history of having a number of complaints made against them qua tampering with their gas meter; video footages and still- snapshots have been collected by the Investigating Officer, which would verify each and every bit of the allegation against the accused; the petitioners have been issued the detection bill of Rs.59 millions by the SNGPL and they have not deposited a penny so far in direction thereto; the petitioners' case falls within the mischief of prohibitory clause of section 497(1), Cr.P.C; lastly submits that the petitioners have not been falsely involved in this case, therefore, their plea for bail may be turned down.
6. After hearing learned counsel for the parties and perusing the record it is observed that the petitioners, though not named in the FIR due to mindless and careless doings of the complainant, visibly stand connected with the offence of theft of gas at a massive scale. While reporting crime to the police, the name of Khawar Sadiq was mentioned by Shah Nawaz Khan, Superintendent Admn.
(complainant), as owner of Malik Steel Re-rolling Mills, situated at Moman Pura main G.T. Road Daroghawala, Lahore. The raiding party consisted of special task-force-team of the Sui-Gas department, besides district administration officials and the local police,' which on receipt of spy information as to theft of gas, raided Malik Steel Re-rolling Mills, at Momanpura G.T. Road A Daroghawala, Lahore, dug-up the suspected spot and unearthed theft of gas through a no-return- valve, fixed on 4" dia distribution-pipeline and stolen gas was being supplied to the said Steel Mills.
The raiding party also discovered a tunnel between the dug-up place and the factory. The no- return-valve and consumer meter station (CMS) were removed and taken into possession. The crux of the arguments of the, learned counsel for the petitioners relates to the fact that the petitioners were not named in the FIR and the factory which allegedly received unauthorized supply of gas did not belong to them.
7. Whether the petitioners owned-Malik Steel Re-rolling Mills was situated at G.T. Road, Momanpura Daroghawala, the site of the alleged crime, or at some other place, was a crucial question which could only be resolved by scanning record of the Sui-Gas department. Likewise it could also be verified from the record,. If Khawar Sadiq accused ran a steel re-rolling mills with identical name and style at the said venue or he had, his factory located at some other site. To resolve this riddle the General Manager of the Sui-Gas Department was summoned along with original record of the Mills of both the consumers, who entered appearance and produced the relevant record. We find that the petitioners' steel re-rolling mills/factory was situated at Momanpura G.T. Road Daroghawala, (consumer No.41100030610) whereas that of Khawar Sadiq bearing identical nomenclature, but different consumer number (6170741000) was situated many miles away from the said spot, at Bhini Road Shadi Pura, Lahore. Learned counsel for the petitioners when confronted with this situation, offered a few clarifications but, sans confidence and cogency.
8. The visual site plan prepared >by the Investigating Officer negated the arguments of the learned counsel for the petitioners that the area, dug-up by the raiding party was at a distance of about 600 to 1100 ft. As, it showed the dug-up spot and the said factory in near vicinity inter se. A couple of arguments made by the learned counsel, as to distance of the dug-up place from the factory of the accused and presence of Saifullah accused, an, employee at the mills of the petitioners, at the spot at the relevant time of the occurrence, looked self-contradictory as, on previous dates of hearing, the learned counsel categorically adopted the version that the petitioners mills were nowhere near the dug up area nor Saifullah accused was known to the petitioners. Learned counsel, however, frankly admitted today that Saifullah was an employee/representative of the petitioners and he represented them everywhere, whenever the situation so demanded. After going through the relevant record, maintained both by the police and the Sui-Gas department it is apparently settled that the venue of the crime alleged, belonged to the petitioners.
9. Besides, separate declaratory suits have been filed by the petitioners wherein they have mentioned the address of Malik Steel Re-rolling Mills, in .Identical terms, as can be found from the contents of the FIR. In another declaratory suit filed by Malik Javed (petitioner) Sui Northern Gas Pipeline Limited and two others on 19-8-2013, the plaintiff gave a description of removal of gas meter of their steel re-rolling mills by the defendants as well as issuing of a bill amounting to Rs.5,63,88,380 to them by the defendants and also mentioned about the occurrence, by referring to FIR No.778/2013 (supra) in para-7 of the plaint, categorically transmitting a message that the area/mills raided on by the raiding party on 2-7-2013 belonged to none-else than the petitioners.
Hence mentioning of the name of Khawar Sadiq in the FIR as proprietor of the said premises, offers no relief to the petitioners.
10. The gadgets used for pilfering gas have been recovered by the police through a memo. Of recovery. This case was partly heard on 26-5-2014. The complainant of the case on the said date behaved strangely, as he at once stated before the court that no unauthorized gas-supply had been detected at the time of raid conducted by a team of the Sui-Gas department, joined by the district administration officials and it only surfaced that the main gas pipe line had been repaired by someone. He, however, sought time to tender his affidavit in this regard. He attended the court today but firmly stood behind the General Manager of the SNGPL and made no effort to come forward to submit his sworn affidavit as to his distorted version. Learned counsel for the petitioners too did not agitate the said version of the complainant during his arguments. Whatever the complainant said on the said occasion, even if taken into consideration, at the most be considered an attempt on the part of the accused to tamper with the prosecution evidence.
11. The petitioners' plea of alibi, that they were not within the country on the day of the alleged occurrence and having gone to Masqat (Capital of Sultanate of Oman) on 29-6-2013 and returned therefrom on 3-7-2013 although verified during investigation, means little at this stage, being a situation which could legally be gone into depth by the learned trial Court after recording evidence of the parties at trial. Guidance in this respect may be had from Ghulam Ahmad Chishti's case (2013 SCMR 385).
12. During arguments it transpired that the petitioners had been issued the detection bill of Rs.
5,90,00,000 by the SNGPL, whereon it was inquired from them if they were willing to pay the said bill or had they any intention to defray 50% of it, in answer to which they categorically denied to have any such, plan. The prosecution case brims with connecting evidence against the petitioners and there exists no material at this stage to believe that they have been falsely involved in this case due to malice or ulterior motives of the complainant or they have not committed the offence alleged.
13. For the discussion supra, this petition is liable to be dismissed, which is accordingly done. The ad interim pre-arrest bail granted to the petitioners vide order dated 28-1-2014 is recalled.