There are three bail applications one filed by Kh. Abrar Majal Advocate (Criminal Miscellaneous No. 3235/B-81) who was admitted to interim pre-arrest bail vide order of this Court dated 24-11-1981; second by Mian Abdur Rehman who was also admitted to interim pre-arrest bail vide order of this Court dated 31-1-1982 in Criminal Miscellaneous No. 277/B-82 and in the third application Mian Muhammad Siddiq, Mian Muhammad Latif, Mian Muhammad Hanif, Mian Abdul Qadir, Shafiq-ur- Rahman, Muhammad Saeed and Rehmat Ali, have applied for bail after arrest. However, Muhammad Hanif, and Abdul Qadir petitioners were released on interim bail by order of this Court dated 1-2-1982, the former being a heart patient and the later being incapacitated.
2. This order will dispose of all the three applications together.
3. A case under section 382/506/452/148/149, P. P. C. Was registered against the petitioners vide F. I.
R. No. 632 dated 22-11-1981 at Police Station Factory Area, Faisalabad, appertaining to an incident stated to have taken place on 31-8-1981, at the instance of Muhammad Younis son of Haji Sher Muhammad, complainant.
4. According to the allegations made in the F. I. R. The complainant's father Haji Sher Muhammad was the Managing Partner of Bismillah Corpora--tion Jhang Road, Faisalabad who on behalf of the said Corporation entered into an agreement dated 4-9-1980 with Rehmania Textile Mills Ltd., Jhang Road, Faisalabad, through Sh. Abdur Rehman, Managing Director (petitioner) by which the complainant's father obtained on lease Rehmania Textile Mills in the consideration of Rs. 1,75,000 payable per month, for a period of two years with effect from 1st October, 1980, to 30th September, 1982. According to one of the terms of the agreement the complainant's father made a payment of Rs. 12,00,000 to the previous lessee which amount was payable by Rehmania Textile Mills on the expiry of the term of lease to the complainant's father. During the subsistence of lease the Government, inter alia gave conces--sions and facilities to the Mill owners on which Sh. Abdur Rehman petitioner, in order to derive himself the benefit of those concessions and facilities, changed his mind and started interfering with the control and functioning of the mill under lease.
On l0th July, 1981, Sh. Abdur Rehman petitioner with wrongful intention and in collusion with the officials of the Central Excise got the clearance of goods manufactured stopped and as such committed the breach of a term of the agreement. However, during this period the mill remained functioning and yielded cotton yarn worth rupees forty lacs which fell in stock. The complainant was appointed as special attorney and he took over the charge of the mill. The complainant sought the intervention of certain respectables to bring Sh. Abdur Rehman round but to no avail.
On 31st August; 1981, at about 9-03 a. m. All the petitioner alongwith Muhammad Asghar, Muhammad Ilyas and some other persons entered the office of the mill. These persons were armed with Lathis and fire-arms. At that time Maqsood Ahmad Manager and other staff were present there. The petitioners alongwith others snatched away the keys of the mill from the staff and put them under restraint and administered threats to them. Thereafter the petitioners and others forcibly removed the cotton yarn worth rupees forty lacs and other article, scrapes worth rupees three lacs, waste worth rupees two lacs, five bales of polster spare parts worth rupees about one lac, Roker worth rupees two lacs and Rs. 1,05,000 in cash. When the complainant made up his mind to approach the police the petitioners through their brotherhood besought the complainant not to do so and promised to return the removals. But despite the intervention of Haji Muhammad Sharif and others, Sh. Abdur Rehman petitioner remained adamant and did not effect any return. Sh.
Abdur Rehman and others had made attempts to cause delay as to the steps the complainant intended to take and ultimately the complainant addressed a complaint to the S. S. P. On which complaint the F. I. R. Stood drawn.
5. The petitioners and co-accused Muhammad Ilyas applied for pre--arrest bail in the Court of the Learned Sessions Judge, Faisalabad which came to be decided by the learned Additional Sessions Judge, Faisalabad who refused to enlarge them on bail vide his order dated 21-1-1922. However, the confirmed the interim bail of Muhammad Ilyas co-accused.
6. Dr. A. Basit, the learned counsel for the petitioners has raised a number of contentions which are :-
(i) that there is a delay of three months in the lodging of the F. I. R which is fatal to the case of the prosecution;
(ii) that the F. I. R. Is mala fide as the motive behind which is to enforce) the terms of a civil contract through a criminal Court. As to they allegation of theft of goods and cash the matter can be demonstrated as false from the very record already in possession of the police r The registration of the F. I. R. Is in contravention of the order of this Court to Writ Petition No. 4548/81 wherein the dispute has been held as of civil nature;
(iii) that the manufacturing operation carried on the premises of the mill is regulated by the provisions of Central Excise and Salt Act, 1944, read with rules made thereunder, as such, it is a process of a controlled manufacture whereat everything as to the production, stock and clearance are shown in black and white in the record which is subject to inspection of Excise Staff who are permanently posted at the gates of the mills as welt as other strategic locations to control and keep the record of movement and the raw material introduced in the premises and taken out therefrom there are registers as to the movement of the raw material and the cotton yarn whether inside or outside. The items as mentioned in the F. I. R. And the entries made by the police during the investiga--tion tion are fictitious and are belied by the record and the gate passes.
In elaborating his contentions the learned counsel has referred to Annexure 'C/1', an application dated 31-8-1981 addressed to the D. S. P. By Sh. Abdur Rehman petitioner complaining against Bismillah Corporation (the complainant) as to the breach of contract having been committed by them, inviting the D. S. P. To control the situation as to the breach of peace which might arise due to the closure of the mill by the complainant, Annexure ---D---, an order by the Collector Excise and Land Custom, authorising Rehmania Textile Mills (the petitioners) the clearance of goods manufactured on or after 31st August, 19k1; pending the dispute as to the stock manufactur--ed by the complainant, Annexure ---E--- containing entries about duty paid godown, Annexure ---H/1-- - a copy of the roznamcha as to the position of cash and expenditure etc., Annexure ---H/2--- pertaining to a voucher of Rs. 10,000 received by the Manager of the complainant.
Lastly the learned counsel has maintained that according to the clause of the agreement the matter was also referred to arbitration and Messrs Haji Muhammad Ibrahim and Haji Bashir Ahmad were appointed as Arbitrators by both the patties (vide Annexure ---C---) but the matter did not proceed successfully and has concluded his arguments after a lengthy address on the point that the entire dispute is of a civil nature, as such, not redressible by a criminal Court and as to the movement of goods, the goods in store and the cash, everything is recorded in the books of the mill which books do not in substance support the allegations of the com--plainant.
7. Mr. S. M. Zubair, Assistant Advocate-General, has opposed the bail application on behalf of the State by submitting that even if it is taken that the matter arose out of the breach of a civil contract, the petitioners could not take the law in their own hands. They had come there duly armed with Lathis and fire-arms and had by force removed the goods and cash and had as such committed theft and other offences in wake of section 382, P. P. C. For which alone the prescribed sentence is ten years' R. I. The police is in possession of the necessary registers and account books and has also recovered stolen goods from various dealers. The police has also recorded the statements of the witnesses under section 161, Cr. P. C., as such, there is sufficient material for the successful prosecution of the petitioners against which the petitioners, according to him are not entitled to bail.
8. Mr. Dilawar Mahmood, Advocate has appeared for the complainant. The learned counsel has maintained that it is not a case of a breach of a contract simpliciter. It is a case of wrongful removal of the goods and cash from the possession of the complainant. According to the statement of Excise Inspector Ch. Muhammad Latif the goods were forcibly removed. He has emphasised on each item mentioned by the complainant in the F. I. R. And has argued that apart from other offences the offence of theft stands, prima facie, established. As to the forcible dispossession of the complainant as to the goods as well as cash, he has relied upon Rangaswa my and another v. Emperor (AIR 1928 Rang. 113), in order to show that whosoever takes the law into his own hand causing wrongful gain or possession to himself and wrongful loss of possession to -his opponent, his act is dishonest and amounts to theft. He has further relied on Bakhtawar and another v. King--Emperor (AIR 1925 Lah. 131) wherein it has been observed that removal of goods from debtor's possession by force to compel the debtor to discharge the debt is theft. Reliance had also been placed on Ghulam Muhammad v. Emperor (AIR 1933 Lah. 481) to show that removal of property with no right to do so by way of asserting right to such property is theft.
The learned counsel for the complainant has further addressed that there are 10 witnesses whose statements have been recorded by the police including the statements of the arbitrators Muhammad Ibrahim and Haji Bashir Ahmad. As to the delay in lodging the F. L: R. The learned counsel has submitted that where the delay can be explained it does not operate as fatal and in this behalf he has relied on Muhammad Anwar v. State (1968 v r- T r 1597). Here in this case the explanation as to delay has been given inasmuch as the complainant had been approached by the Bratheri and compelled not to take immediately any step and since Sh. Abdur Rehman petitioner had also promised to return the goods and cash. So the complainant waited and in doing so the F. I. R. Was delayed.
9. Rana Muhammad Sarwar, Advocate appearing on behalf of Kh. Abrar Majal, Advocate (petitioner) has contended that his client Kh. Abrar Majal, has been simply named in the F. I. R.
Because he is legal advisor of Rehmania Textile Mill Ltd. According to him he has not participated in the occurrence in any way. He has further submitted that petitioner Kh. Abrar Majal is a practising Advocate of this Court.
10. After hearing the learned counsel for the parties and weighing the case what appeals to reason is that as has been set out above, in a factory or a mill where there is a controlled manufacturing, as to the move--ment of the goods as well as the goods in store and the cash in hand, the books can speak with more accuracy as compared to any of the parties. Once it is regarded as a matter subject to verification through the book or record of the mill, matter forthwith falls as to the allegations or guilt of the accused as a matter of further inquiry and as to whether the matte in dispute is of a civil nature or of criminal nature case again falls due for further inquiry attracting the provisions of subsection (2) of section 497, Cr. P. C. The petitioners are therefore, entitled to bail.
Petitioners Mian Muhammad Siddiq, Mian Muhammad Latif, Shafiq-ur-Rehman, Rehmat Ali and Muhammad Saeed are ordered to be released on bail on their furnishing bail bonds in the sum of Rs. 50,000 (Rupees fifty thousand) with one surety each in the like amount to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Faisalabad. Similarly, the interim bail granted to petitioners Mian Muhammad Hanif and Mian Abdul Qadir, is confirmed.
Petitioner Abrar Majal is a practising lawyer of this Court. He is also stated to be Legal Advisor of Rehmania Textile Mill. For similar reasons, his interim pre-arrest bail is confirmed. Sh. Abdur Rehman petitioner is on interim bail. His bail is also confirmed.
11.The three petitions stand disposed of accordingly.