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Criminal Bail Applications Nos. 1426 and 1428 of 1976, heard on 23rd December 1976.
---S. 497‑Bail‑Petitioners, railway employees, caught red‑handed while manufacturing house‑hold articles in railway Loco‑Shed out of railway material‑Petitioners making judicial confession and further leading to recovery of such materials‑Bails declined, in circumstances.
----S. 497‑Accused only mentioned as accomplice in confessional statement by co‑accused and further leading to recoveries of same articles allegedly railway properties‑Bail granted, in circumstances.
Shaikh Fazal Din for Applicants in Cr. Bail Application No. 1426 of (1976).
Nooruddin Sarki for Applicant in Cr. Bail Application No. 1428 of (1976).
A. Sattar Shaikh, Asstt. A.‑G. for the State.
Date of hearing : 23rd December 1976.
This order will dispose of bail applications bearing No. 1426 and 1428 of 1976 as they arise out of the same charge‑sheet and the same transaction. The applicants in these two bail applications are facing trial for offences under sections 379, 409/34 read with section 5 (2) Prevention of Corruption Act, in the Court of Special Judge (Central), Karachi. The applicants are employees of the Pakistan Railway stationed at Sukkur Railway Station. It is alleged that on 26‑11‑76 complainant Muhammad Younus, engine cleaner, Loco Shed Railway Sukkur lodged a complaint with F. I. A. stating that on the same day at 12 hours, he alongwith Muhammad Alam and Ghulam Nabi went to the Loco Shed and found applicants Muhammad Bux Turner, Azimullah Shah also a Turner, Shaikh Wahab Fitter and Qadir Bux Fitter, cutting the railway plates and manufacturing big knives and burners and other household articles. It was alleged that these articles were being manufactured from railway material. Upon enquiry the accused are said to have stated that they were doing so at the instructions of applicant Muhammad Yakoob, Foreman and Jamil Store Clerk.
The investigation was undertaken by the concerned police and the present applicants were apprehended. It is not disputed that the three applicants namely Azimullah, Shaikh Wahab and Muhammad Bux have given judicial confessions implicating themselves as well as Muhammad Yakoob, Foreman and Jamil.
On being moved for bail the learned Special Judge granted bail to Jamil and Qadir Bux but refused the request as regards three applicants by reason of their judicial confessions. The request for bail by Muhammad Yakoob was rejected on the ground that certain articles were recovered from his possession.
It is contended on behalf of applicant Muhammad Yakoob that the facts placed on record do not make out a case under section 409, P. P. C. inasmuch as the said applicant was not entrusted with goods, which are the subject- matter of alleged misappropriation. In this connection learned counsel submitted that Muhammad Yakoob performs the duties of the Foreman and has therefore no dominion over the Government material, which is incharge of Jamil, Store Clerk who has been granted bail.
As regards the three confessing accused, learned counsel for them made a similar submission that the nature of the duties performed by these applicants are such that they have no dominion over the Government property involved. He therefore submitted that the offence if any committed by the applicants would fall under section 3191411, P. P. C. and not under section 409, P. P. C.
Learned Asstt. Advocate‑General, however, strongly controverted the submissions made by the two learned counsel as regards the entrustment of the property. He submitted that all the applicants work in Loco Shed where they have access to spare parts and other Government material used in the workshop. Consequently, there would be evidence to show that the applicants were entrusted with the Government articles.
Be that as it may, this is not the stage to undertake minute appraisal oft evidence, which is the function of the trial Court. The fact that the three applicants namely Azimullah, Shaikh Wahab and Muhammad Bux were found in the act of manufacturing household articles in the Government Loco Shed has not been seriously disputed. It is also not denied that these applicants made judicial confession and there is evidence that recoveries were made from these applicants. In the circumstances, I agree with the learned Asstt. Advocate General that these applicants are not entitled to bail.
The case of Muhammad Yakoob is distinguishable. He was not caught red‑handed and only evidence against him is that of the confessions of the co‑accused and recovery of certain household articles. Mr. Sarki strongly contended that for the present no evidence has been pointed out, connecting the household articles with the Government material. In the circumstance the learned Asstt. Advocate General has also not opposed the grant of bail to this applicant.
While therefore, dismissing the request for bail to applicants Azimullah, Shaikh Wahab and Muhammad Bux, I would grant bail to applicant Muhammad Yakoob. He shall be released on his furnishing one surety in the sum of Rs. 5,000 and P. R. in the like amount to the satisfaction of trial Court
Bail allowed.
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