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Bail Application No.302 of 1985, decided on 19th January, 1986.

‑‑‑--S. 497‑‑Penal Code (XLV of 1860), S.406/420/468/471‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5‑‑Bail grant of‑‑Principle of consistency ‑‑Co‑accused granted bail to whom almost similar roll was assigned‑‑Accused remained absconding for about one year, and not having joined investigation‑‑Every likelihood of accused absconding again‑‑Accused a person wanted in number of cases of similar nature‑‑Principle of consistency, held, would not be attracted inasmuch as case of accused was found distinguishable from his co‑accused and it seemed most likely that he would continue to commit same type of offences if he was enlarged on bail‑‑Concession of bail , was, therefore, refused.

Achhaibar Misir and another v. Emperor A I R 1929 All. 6,14; Dhanpal v. Emperor A I R 1936 All. 656; Mukthar Ahmad v. The State P L D 1963 Lah. 451; Sufi Muhammad Iqbal and another v. The State 1975 P Cr. L J 628 and Muhammad Aslam v. the State 1976 P Cr. L J 388 ref.

Muhammad Azhar for Petitioner.

Sardar Nazar Hussain Dogar Special Prosecutor for the State.

According to the prosecution story the accused is alleged to have accompanied Gervasia Pavanelli, an Italian lady, when she came to Asia Hotel, Rawalpindi and stayed there and also accompanied her whenever she went to N.B.P. Main Branch, Islamabad, to get the lost/stolen traveller cheques encashed. It is stated that he supplied her stolen/lost traveller cheques and was a party to the act of the said Italian lady in getting the said cheques encashed.

2. To some extent similar was the role assigned to Muhammad Ashraf Co‑accused who was granted bail by this Court by its order, dated 20‑2‑1985. The petitioner claims bail on the principle of consistency.

3. I have heard learned counsel for the accused‑petitioner, learned Special Prosecutor and have also gone through the record minutely.

4. Case of accused‑petitioner Muhammad Sayeed Azhar appears to be distinguishable from that of the co‑accused Muhammad Ashraf as unlike co‑accused Muhammad Ashraf, he absconded and could not be arrested on or about 16‑1‑1985, the date of registration of this case. Later, he was caught red‑handed during the course of making a theft of traveller cheques and dollars from a Japanese National staying in Shalimar Hotel, Rawalpindi in respect of which F.I.R. No.365/85 for offence under section 380, P.P.C was lodged with P.S. Ganj Mandi, on 28‑11‑1985. It is submitted by Anwar Hussain, Inspector, F.I.A., that during investigation of the said case, accused‑petitioner was posing to be Munir son of Bashir and since he had been Investigating the present case earlier' and had during the investigation found his photograph he apprised the Investigating Officer of that case that his name was Muhammad. Sayeed Azhar and that it was on that that the accused petitioner admitted that his real name was Muhammad Sayeed Azhar. He further submits that since the accused had been caught red‑handed on 28‑11‑1985 in the incident reported in the said other F.I.R., he got the custody of the said accused and showed his arrest in this case only on 18‑12‑1985, till which date the accused‑petitioner was absconding in the present case. Learned counsel for the accused has riot been able to controvert the said assertion of the Investigating Officer. It appears, therefore, that the accused was absconding from 16‑1‑1985 to 1812‑1985‑ or at least from 16‑1‑1985 to 28‑11‑1985 as he had not appeared during this period before the police in order to join investigation and was prima facie an absconder. I have seen the record of the police officer which shows proceedings under section 87. Cr. P. C: having been taken against the accused‑petitioner. The principle of consistency does not, therefore, stand attracted to the facts of petitioner's case.

5. The abscondance of the accused‑petitioner appears to show that he was concerned in the offence. Furthermore, the facts and circumstances of the said abscondance show that there is likelihood of the accused absconding again. The process of trial cannot be allowed to be defeated by permitting the accused, who has prima facie propensity towards concealing himself and absconding after commission of the crime, to remain at large, as, he is not likely to remain available to stand his trial and serve his sentence if one is passed on the conclusion of the trial.

6. Furthermore, it is stated that besides the present case, the accused‑petitioner is wanted in a number of other cases in which modus operandi of the accused was that he alongwith others arrange lodging/ boarding of the traveller/tourists of relatively modest means in the ordinary hotels and then committed theft of their traveller cheques, dollars and other currency notes and thereafter through the said Italian lady who according to the Investigating Officer was expert in forging the signature of person on the traveller cheques, got them encashed and the accused used to go with her everywhere, wherever she went about for the said purpose. According to the Investigating Officer, the said Italian lady received only 20% commission while the remaining 80% was taken away by the suppliers of said stolen/lost traveller cheques like the petitioner. As an instance of the same he has pointed out that in Mehraj Hotel. Rawalpindi a Chinee National was deprived of traveller cheques and dollars and recovery of foreign currency worth Rs.5,000 had been effected from the accused. F.I.R. in that Case is No.432/85 P.S. 'C' Division, Rawalpindi. It is also submitted by the Investigating officer that the accused is also wanted in two other similar cases namely F.I.R. No.l/85 of F.I.A. Multan and F.I,R. No.13/85 P.S. Cantt: Multan. On the basis of these facts too it is submitted that bail should be refused to the accused‑petitioner.

7. It is vociferously contended by learned Special Prosecutor that observation of this Court in the order granting bail to co‑accused Muhammad Ashraf that each case has to be decided ok its own merits and therefore, the fact that accused Muhammad Ashraf stood implicated in a number of other similar cases was not sufficient to deny him the concession of bail did not reflect the true state of law. He submits that to such a person bail should be refused to disable him from proceeding to commit further similar offences.

8. After hearing the learned Special Prosecutor as well as the learned counsel for the accused and after giving my serious thought to this matter, I feel inclined to agree with the learned Special Prosecutor. In Achhaibar Misir and another v Emperor A I R 1929 All. 614 it was held that when it is likely that while on bail, the accused may commit similar offence for which he is already arrested, the Court may refuse to enlarge him on bail. In Dhanpal v . Emperor A I R 1936 All. 656 it was held that a man is kept in prison not only to prevent his absconding but also, if there is reason to believe that he has committed crimes of certain type, to prevent him from being a possible danger to the community. In Mukhtar Ahmad v. The State P L D 1963 Lah. 451, it was held that a person who is desperate and feels that he has nothing further to lose by committing more offences should not be allowed to be in a position to do so and, therefore, he should not be let loose on the society. It was further observed therein that an accused person should be deprived of his liberty if he is likely to utilize the interval between his accusation and finding in respect of that accusation to commit further offences in the belief that he is going to be convicted in any case and no greater harm would come to him if he committed more offences during the interval. Again in Sufi Muhammad lqbal and another v. The State 1975 P Cr. L J 628 it was held that the contention that the mere fact that the accused is involved in some other cases was not sufficient to refuse him the concession of bail on the ground that each case must be decided on its own merits has no force and earlier conduct of an accused person is also relevant and can be considered while determining the question of entitlement to grant of bail and the antecedents of the accused seeking bail car, also disentitle him to the concession of grant of bail, as, it is likely that he would commit further offences if released on bail. In Muhammad Aslam v. The State 1976 P Cr. L J 388, the principle which was made the basis of the decision in bail application was that when the offence arising out of the activities indulged in by the accused is not first one and is likely to be committed by the accused again, it is not proper to let him loose in the society. Respectfully following the said authorities, I now hold that bail should not be granted to such accused persons as are likely on grant of bail, to repeat same type of offences as the one for which they stand charged. As a matter of fact grant of bail to accused persons, notwithstanding their implication in number of other cases of similar type of offences appears to amount to lending them a helping hand in keeping on committing such crimes and I am not persuaded to the view that bail should be refused to them precisely on the ground that on being enlarged on bail, they would continue to commit similar type of offences.

9. From the above facts given by the Investigating Officer which could not be controverted by the learned counsel for the accused petitioner, it appears that accused has been committing same type of offences as the one for which he has been charged in the present F.I.R. In view of that it seems most likely that he would continue too commit same type of offences if he is enlarged to bail in this case. He, therefore, does not deserve the concession of bail.

10. For the foregoing reasons reject this bail application.

S.A. Petition dismiss.

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