1. ' The abovementioned three bail applications are being disposed of through this order.
2. ' The F.I.R. In this case was registered on 22-8-1998 which is as under:-- ' "Mr. Raja Muhammad Anwar and Mr. Muhammad Azam Awan, Chairman of Khidmat Committee, Sub-Division Civil Lines, Karachi (South) Tel. No,5786227 submitted a Complaint bearing No,70 of 1998, dated 21-8-1998 before the Deputy Director, F.I.A., S.B.C., Karachi. The contents of said complaint are reproduced as under:-- ' To ' The Deputy Director, F.I.A.. State Bank Circle, Karachi.
3. Sub: Causing huge loss to Public Exchequer/PTCL by persons of illegal P.C.Os.
4. ' Dear Sir, ' It is submitted that some private persons are inducing in causing heavy loss to Public Exchequer/PTCL by running business of P.C.O. On the strength of private Telephone without having PCO permission within the jurisdiction of Civil Lines Sub-Division, Karachi by making illegal STD calls for their customers in Rs,70 of each six minutes call. The said persons of illegal PCOs receive the said illegal STD calls with the connivance of PTCL employees of EMD/STD Telephone Exchanges of interior Sindh/Baluchistan/ Punjab/Frontier. They receive the said illegal calls from the abovementioned staff of PTCL in Rs,35 of each call from their customers.
5. ' Although the concerned Staff of Line and Wiring of PTCL of abovementioned area is also duty- bound to finish the said illegal business by closing the private telephone (without PCO permission) of abovesaid PCOs, but the said staff is reluctant to do so, for the reasons best known to them.
6. ' Under the abovementioned circumstances, the undersigned has been directed by the Members and Chairman of Khidmat Committee, Sub-Division Civil Lines, Karachi (South) to report this matter in F.I.A. State Bank Circle, Karachi for taking legal action on the said illegal PCOs in order to save the Public Exchequer/PTCL from heavy losses. Hence this report is submitted by the undersigned.
7. 'As regards the identification/pointation of said illegal PCOs it is submitted that the same will be made at the time of raid.
8. ' Thanking you.
9. ' Yours sincerely ' Countersigned (Sd.) (Sd.) Raja M. Anwer) ' for Chairman (Muhammad Azam Awan)
10. ' Chairman/Sub-Division ' Civil Lines, Karachi (South).
11. ' Khidmat Committee, Sub-Division ' Civil Lines, Karachi (South). '
12. ' The Deputy Director, F.I.A., S.B.C., Karachi vide his Letter No,FIA/SBCK/2855-56, dated 22-8-1998 referred the abovesaid complaint to the undersigned with the directions to conduct the raid under the supervision of Magistrate.
13. ' Accordingly, I, Inspector, Muhammad Ayub Durrani alongwith staff viz. H.C. Khalid Pervez and F.C.
14. Rana Muhammad Javed of F.I.A., S.B.C., Karachi, under the supervision of Mr. Shah Muhammad Shah, Senior Traffic Magistrate, District South Karachi and on pointation of Mr. Raja Muhammad Anwar and Mr. Muhammad Azam Awan, Chairman of Khidmat Committee, Sub-Division Civil Lines, Karachi (South) conducted search of Shahzad Call Point PCO situated at Plot No,78, Shop No,3, Gali No,2, Baluch Center, Upper Gizri, Clifton, Karachi in presence of two Mashirs namely Dr. Mumtaz Ahmed son of Younus Rehman and H.C. Khalid Pervez of FIA, SBC, Karachi. During the said search, one person was found busy in running business of PCO who disclosed his name Anwarzada son of Wazirzada NIC No,108-92- 044145 permanent resident of village Toor Killa, P.O. Mayyar, Tehsil Munda, District Deer and present resident of Opposite Abu Bakar Masjid Katchi Abadi, Hassan Zaheer Shaheed Road, Upper Gizri, Clifton, Karachi as employee of said PCO and further disclosed, that the owner of said PCO is Sahib Zada resident of near Abu Bakar Masjid, Katchi Abadi, Hassan Zaheer Shaheed Road, Upper Gizri Clifton, Karachi. During said search, one operator was found available on line of Telephone No,5877571 of said PCO. The Honourable Senior Traffic Magistrate District South Karachi spoke with the said operator, who disclosed his name as Shahid Operator of Lahore and busy in supplying of STD calls to the said PCO but the said operator Shahid did not disclose his telephone No, of Lahore. The employee of said PCO viz. Anwarzada son of Wazirzada further disclosed that he does not know the telephone No, of said operator (Shahid) of Lahore due to the reasons that said operator comes himself on line for supplying illegal STD calls at the said PCO. The said employee further disclosed that the telephone No, of said operator can be confirmed from his owner Sahib Zada. On further search, one Telephone No,5877571 was found being used for PCO business without PCO permission at said PCO, while two telephone wires meant for two telephone lines were found being hanging on the wall of said PCO, for which the said employee disclosed that two Telephone Nos.5877572 and 575150 have recently been closed at this PCO. The said employee Anwarzada further disclosed that one person namely Badar Telephone No,024181- 200 of Daur Telephone Exchange also provides illegal STD calls for customers of said PCO. The said employee Anwarzada of said PCO further disclosed that the staff of Clifton Telephone Exchange always visit this PCO and receive illegal gratification from owner Sahibzada for not disconnecting the telephone of said PCO on PCO allegations. The said employee Anwarzada further disclosed that he does not know the name of said staff of Clifton Telephone Exchange, Karachi and amount of illegal gratification and the same can be confirmed from owner Sahibzada. The Articles/ documents viz. (1) Three telephone sets (2) one switch board meant for three telephone lines. (3) one circuit with telephone receiver for the purpose of clear voice and to through/extend illegal STD calls to another place after receiving the same from operator (4) two books and one diary with blue coloured cover meant for record of telephone calls (5) one green (star) coloured file of telephone bills and (6) Pak Rs,4,600 (Rupees forty-six hundred only) sale money of PCO for 22-8- 1998, recovered from the said illegal PCOs, which were seized at the spot in presence of abovenamed witnesses and Officers through proper memo. Dated 22-8-1998 at 16-45 hours.
15. ' Thereafter, the undersigned alongwith abovesaid staff, witnesses, under the supervision of abovesaid Honourable Magistrate and on pointation of abovenamed Member/Chairman of Khidmat Committee conducted search of another illegal PCO situated at C116, Shah Rasool Colony, Katchi Abadi, Clifton Karachi. During the said search, one person was found busy in running business of PCO, who disclosed his name Muhammad Sulleman Solangi son of Muhammad Khan Solangi NIC No,432-78-213939 permanent resident of village Umer Din Solangi, P.O. And Taluka Kandiaro, District Naushehero Feroze, present resident of C-116, Katchi Abadi, Shah Rasool Colony, Clifton, Karachi as owner of said PCO. During further search, one Telephone No,5864737 was found being used for PCO business without PCO permission. The said owner further disclosed that one World Call Telephone No,5875514 has recently been closed at this PCO. He further disclosed that Lineman Shoukat and Telephone Technician (T.T.) illegally receive illegal gratification/monthly Bhatta of Rs,2,000 each every month for not disconnecting telephone of said PCO on PCO allegation. The owner of said PCO Muhammad Suleman Solangi further disclosed that he receives illegal STD calls from (1) Hameed, Telephone No,7223429 of illegal Mini Telephone Exchange of Saddar Karachi Telephones Nos.6348575 and 6348572 of illegal Mini Telephone Exchange situated at "M" Block, Al-Asif Square, Sohrab Goth, Karachi against Rs,35 of each six minutes STD call. The Articles Documents viz. (1) one telephone set (2) one sports timer, one telephone bill of Telephone No,5864737 for the month of November, 1997 amounting, to Rs,2,890, (4) one red coloured personal directory, (5) one book without cover meant for maintaining record of telephone calls and (6) Pak.
16. Rs,700 (Rupees seven hundred only) Sale money of calls for 22-8-1998 recovered from the said illegal PCO which were seized at the spot in presence of abovenamed witnesses and Officers through proper memo. Dated 22-8-1998 at 17-40 hours.
17. ' Thereafter, the undersigned alongwith the same staff, witnesses, under the supervision of abovenamed Honourable Magistrate and on pointation of abovenamed Member/Chairman of Khidmat Committee, conducted the search of another illegal PCO in the name and style of Habib General Store situated at Plot No,I-C, Shop No,2, 33rd Toheed Commercial Street, Defence Housing Authority, Karachi. During the search two Telephones bearing Nos.576767 and 5864750 were found being used for PCO business without PCO permission and world call Telephone No,5875012 also found being used for said business. Whereas the person who was found running said business disclosed his name Habib Rasool son of Chaudhry Kamal Din, Permanent resident of House No,373, Bheer Bazar, Muhalla Dhobin Wala, P.O. Kiror Paka, Tehsil Lodhran, District Multan and present resident of House No,13, Gali No,14, Upper Gizri, Clifton, Karachi NIC No,326-90-002827 as owner of said PCO and further disclosed that Lineman Rajoo Hindu and T/T Asghar of Clifton Telephone Exchange, Karachi receive illegal gratification/monthly Bhatta of Rs,2,000 in every month for not disconnecting abovesaid two private telephones of said PCO on PCO allegation. He further disclosed that SDO Sarwar Rajput of Clifton Telephone Exchange, Karachi has also visited this PCO and saw the said two private telephones for PCO business, but the said SDO did not disconnect the abovementioned two private telephones due to the reasons that said SDO knows about said monthly Bhatta to his above named Lineman and T/T The said owner Habib Rasool further disclosed that he uses World Call Telephone No,5875012 Local Calls due to the reasons that World Call telephone has only outgoing facility and no illegal STD call can be supplied on it by any illegal operator, as well as uses two private Telephones Nos.576767 and 5864750 for STD calls as one illegal operator of illegal Mini Telephone Exchange Landhi, Karachi namely Lal Khan Telephone No,5080555 supplies illegal STD calls on the said two private Telephones for customers of this PCO.
18. The article/documents viz. (1) three telephone sets (2) one sports timer, (3) one Millat Publications black coloured telephone index, (4) two books meant for record' of telephone calls, (5) Pak.
19. Rs,5,920 (Rupees five thousand, nine hundred and twenty only) sale money of calls, (6) original NIC of Muhammad Saleem Javed son of Ghulam Hyder bearing No,253-57-195863 and (7) telephone bills of Telephones Nos.576767 and 5864750 for the month of July, 1998 recovered from the said illegal PCO which were also seized at the spot in presence of abovenamed witnesses and Officers through proper memo. Dated 22-8-1998 at 18-35 hours.
20. ' The above facts confirm that accused persons viz. (1) Anwarzada son of Wazirzada (2) Sahibzada employee and owner respectively of Shahzada Call Point PCO situated at Plot No,78, Shop No,3, Gali No,2 Baluch Central Upper Gizzri, Clifton Karachi, (3) Muhammad Suleman Solangi son of Muhammad Khan Solangi owner of illegal PCO situated at C-116, Shah Rasool Colony, Katchi Abadi, Clifton Karachi and (4) Habib Rasool son of Choudhry Kamal Din owner of illegal PCO in the name and style of Habib Beneral Stores situated at Plot No,1-C, Shop No,2, 33rd Toheed Commercial Street, Defence Housing Authority, Karachi, knowingly and having reasons to believe that the abovementioned telephone connections have not been sanctioned/installed by the competent authority to use the same for the PCO business purpose, but they utilized the same for PCO business purpose with the blessing of PTCL employees viz. (1) Badar of Daur Telephone Exchange
(2) Lineman Shoukat of Clifton Telephone Exchange, Karachi (3) Telephone Technician Asghar of Clifton Exchange, Karachi (4) Lineman Rajoo Hindu of Clifton Exchange and (5) S.D.O. Sarwar Rajput of Clifton Telephone Exchange Karachi, as well as with the active connivance of illegal operators (private persons) of illegal Mini Telephone Exchange viz. (1) Shahid of Lahore (2) Hameed, Telephones Nos.6348575 and 6348572 of illegal Mini Telephone Exchange situated at "M" Block, Ai- Asif Square, Sohrab Goth, Karachi and (4) Lal Khan Telephone No,5080555 of illegal Mini Telephone Exchange of Landhi Karachi, who by committing the criminal breach of trust misappropriated large numbers of STD calls, of heavy amount by providing the same illegally to the said illegal PCOs in order to cause pecuniary advantage for themselves or co-accused persons and thus, caused substantial loss to public Exchequer/PTCL. In this way the abovenamed staff of Clifton Telephone Exchange, Karachi also abused their official position by rendering illegal assistance in connection with unauthorized business of PCOs.
21. The above act of the accused persons disclosed the commission of offences punishable under sections 420/409/109, P.P.C. Read with section 5(2) of Prevention of Corruption Act (II of 1947).
22. Hence registration of this case under the permission of competent authority and investigation is taken up.
23. (Sd.) (Muhammad Ayub Durrani), Inspector, F.I.A., S.B.C. Karachi.
24. 22-8-1998 ' The learned Senior Special Judge rejected bail application of applicant Anwarzada on 29-9-1998 mentioning as under:-- ' "However, firstly I would like to take up the case of accused Anwarzada. The main allegation against him was that they used to receive calls from Daur Sindh as a result they have arrested some officials belonging to Engineering Section of Telephone Department and the relevant record having been secured from there shows the financial loss to the tune of Rs,30,00,000 and that according to Investigating Officer still some record is expected to come from ATOR which has to be checked by them to find out the financial loss to the Public Exchequer, if any. Learned defence counsel has mainly contended that the other persons belong to Telephone Department from whom the applicant was alleged to receive calls, have yet to be arrested, as such there is no use to keep him in jail. But apart from the fresh evidence as discussed in foregoing para. There is sufficient material collected by the Investigation Agency to connect him with this incident. At the time of conducting raid, the applicant was receiving illegal telephone calls from one operator Shahid of Lahore and that learned Magistrate according to Mashirnama prepared by the Investigating Officer took the receiver from him and had a talk with said operator Shahid at Lahore which of course is such evidence which cannot be brushed aside. As I have already pointed out that some other record has also been called for scrutiny to find out the loss. Under the circumstances I find no reason to reconsider his bail application. Resultantly the same is rejected."
25. ' The learned Senior Special Judge Central-II while rejecting bail application of applicant/accused Hameed-ur-Rehman has mentioned as under:-- ' "At the very outset I may point out that during the course of conducting the raid by the Senior Magistrate on 22-8-1998 in this case, one accused Muhammad Sunman Solangi disclosed the name of accused Hameed-ur-Rehman who used to receive the illegal calls. Consequently the Inspector F.I.A. Conducted the raid at that shop on 27-8-1998 to check it, where he actually found applicant Hameedur-Rehman indulging in doing illegal business of PCO. Not only this but he also saw another employee namely Munsif doing the same thing in the same shop. During course of alleged search, Inspector, F.I.A. Secured incriminating articles, six telephone sets, one red colour 'lap start', 'reser start timer', one equipment alongwith one telephone receiver, one switch board meant for telephone switches/line, five books and Rs,2,950."
26. ' Accordingly the bail application of Hameed-ur-Rehman and Munsif was rejected.
27. ' Learned Advocates for applicants have submitted that the co-accused have been granted bail and the rule of consistency requires that applicants be granted bail. The F.I.R. Did not mention that illegal telephone calls were being made from the PCO but the case of prosecution is that the telephone calls were received. The registration of case for offences under Pakistan Penal Code is wrong because special law is available. Telegraph Act, 1885 provides various kinds of penalties and the F.I.R. Should have been registered for offences mentioned in that Act. In a similar case proceedings were quashed in Criminal Miscellaneous No,111 of 1993. Learned counsel have requested for bail on the ground that ingredients of offences under section 409, P.P.C. Are not made out and offence under section 420, P.P.C. Is bailable. The offences are not punishable with death, imprisonment for life or more than 10 years.
28. ' Learned Dy.A.-G. Has opposed the grant of bail to the applicants on the grounds that the case of these applicants are different from the case of accused who have been granted bail by the trial Court. He submitted that there is allegation that they have caused loss to the Government to the extent of Rs,30,00,000.
29. ' The case of the prosecution is that Inspector M. Ayub Durrani of F.I.A. Had registered F.I.R. On the basis of written complaint of Chairman, Khidmat Committee, Sub-Division Civil Line, Karachi South.
30. Thereafter, three places are said to have been raided. During these raids it was found that PCOs were being operated illegally thereby causing huge loss to the Government. The learned counsel submitted that co-accused have been granted bail and on 4-12-1998 statement was submitted by Advocate for applicant in Criminal Bail Application No,1053 of 1998 that co-accused Sulleman Solangi, Shoukat, Raju, Muhammad Asghar and Zahid have been granted bail by the trial Court.
31. The nature of allegations against applicants are different. The facts reveal that telephone sets and other apparatus used for running the PCOs were recovered at the time of raids. Although prima facie case is made out by the prosecution against the applicant/accused but bail cannot be withheld as a punishment. The accused will have to face trial and will have to undergo the sentence provided for the offence alleged against them. The benefit of bail can be given to them because investigation is completed and they are no more required for investigation. I, therefore, grant bail to applicants/accused in all the three bail applications subject to furnishing of one surety by each applicant in the sum of Rs,2,00,000 (Rupees two lacs each) and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.