IN THE HIGH COURT OF SINDH, KARACHI

Crl. Bail Application No.1112 of 2016

(Roshan Ali Solangi Vs. The State)

Present:

Mr. Justice Ahmed Ali M. Shaikh, J

Mr. Justice Muhammad Saleem Jessar, J

DATE OF HEARING : 04.11.2016

APPLICANT : Roshan Ali Solangi through Mr. Ghulam Sarwar Chandio, Advocate.\

RESPONDENT : The State through Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.

COMPLAINANT : Abdul Raheem Mengal through Mr. Abdul Latif Shaikh, Advocate.

O R D E R

MUHAMMAD SALEEM JESSAR, J : - We intend to dispose of instant bail application filed by applicant Roshan Ali Solangi, whereby he seeks his release on post arrest bail in crime No.24 of 2016, for offence punishable under Section 365, 384, 385, 386, 506-B, 342 and 34 P.P.C., read with Section 7 of Anti-Terrorism Act, 1997, registered with P.S. Malir City. The applicant has preferred such application before learned trial Court, but his request has been turned down vide order dated 12.07.2016. The case as reported has already been challaned by police on 10.08.2016 and same is now pending trial before the Court of learned Judge Anti-Terrorism Court-IX, Karachi being Special Case No.414 of 2016 “Re. The State Vs. Zafar Abbas and others.”

2. The case of prosecution, as unfolded by complainant Abdul Raheem Mengal in his F.I.R. No.24 of 2016, lodged on 08.02.2016 at 2050 hours is that he is a businessman. One Manzoor Shah, being vagabond, had issued threats to him for Bhatta. On 18.12.2015 the complainant left his house alongwith his friend Yaseen for proceeding to his office on his car and when they reached at the corner of Malir Court Road at 1030 hours, two Police Mobiles and Corolla Car intercepted them. The Policemen, duly armed, got him alighted from the car. The complainant found Amanullah Shah, Zahid Shah and their two accomplices to whom he can identify, caught hold of the complainant and made him to sit in their car, whereas his friend was moved inside police mobile. The eyes of complainant were folded with the strip and then they proceeded towards unknown location where the hands of complainant were tied and they were confined in a room. In the night time, they were shifted from one room to another, where they were being slapped as to why they have failed to pay extortion / bhatta money to Manzoor Shah and now they have to pay One Crore else they would be killed. During maltreatment the strip folded on the eyes of the complainant was slipped down he saw one signboard in the room it was ascribed “Mobina Police Station” and found a person was sitting adjacent to him who asked the complainant to hand over mobile phone to make a call at 03008220586 of Manzoor Shah as such call was made on the number. Person who was maltreating the complainant talked with Manzoor Shah and narrated him that they have done the job now he should collect bhatta amount then he switched off the mobile phone and the complainant was confined in the room after about few hours they were shifted to another house where complainant was hearing the voices of some women folks. It is stated in the F.I.R. that during his confinement, Manzoor Shah had been demanding bhatta amount from his family. On one night complaint was taken out in the open area where his stripes were removed from eyes and they saw Manzoor Shah along with family members of the complainant. Manzoor Shah received Rs.68,50,000/- in the shape of hard cash and cheque and handed over the same to two persons sitting in front of him. One of them introduced himself to be Roshan Ali Solangi (applicant), who exposed himself to be DSP besides he introduced other persons to be S.H.O. Zafar Abbas who was identified by complainant to be the same persons sitting on the chair in the room where “Mobina Police Station” was ascribed. After receiving bhatta amount the culprits directed others to release the complainant on main gate of Sachal Goth. Thereafter he reached at his home. Complainant along with his family remained under panic and fear situation but was encouraged and consoled by his relatives, therefore, he got his case registered in above terms.

3. After registration of F.I.R., police took up investigation and meanwhile arrested the applicant / accused on 23.02.2016 and during investigation applicant / accused paid / returned Rs.3,20,000/- being his share out of the extortion, forcibly collected from the complainant. Police had also recovered Rs.7,00,000/- from co-accused Zafar Abbas and Rs.4,80,000/- from co-accused Manzoor Shah and after completion of legal formalities submitted the charge sheet before competent Court of law having jurisdiction.

4. Learned counsel for applicant has mainly contended that FIR is delayed for about 51 days and the recovery whatever has been shown to have been recovered from the possession of applicant has been foisted upon him by the police with at the behest of complainant. He further submits that applicant is innocent and has been implicated falsely by the complainant, he, therefore, has prayed for his release on bail.

5. Learned A.P.G. duly assisted by Mr. Abdul Latif Shaikh counsel for the complainant has opposed the application on the ground that outlaws have made lives of the citizen miserable as has been done in this case. He further argued that on refusal to pay extortion the complainant was kidnapped and after receiving huge amount as an extortion from him was released and such situation has created a panic atmosphere. He further submitted such frequent activities of criminals have developed sense of insecurity and terrorism in the minds of the citizen which prima facie warrants application of section 7 of the ATA, 1997. He submitted that if criminals may not be nib in the bud then society would have to face much a lot then they are experiencing which would affect it as a whole. He however has opposed the application.

7. We have heard learned counsel for the parties and have gone through the material collected by the investigation officer during investigation and have perused the record made available before us.

8. The police being custodian of law are supposed to guard citizen and their rights by providing legal protection but when under the garb of their lawful worthy duty and status commit terror activities by misusing their official capacity require interception by the competent forum. If they (police) may not be curbed at this stage then every citizen would not only feel insecurity and uncertainty rather will be discouraged while criminals would be encouraged. As per constitutional provisions and law of the land, it is bounden duty of the State to provide legal protection to the citizen, their property and rights but when organs of the State may act contrary to the law then the courts should interfere and direct the State functionaries to act in accordance with law and the Constitution.

9. It appears that applicant is nominated in the F.I.R. Here, it is material to mention that the applicant / accused is a police official whose duty otherwise is to ensure sense of security and protection among the people, living under his command area. If a police official is charged with such like offence, it shall not only expose such accused (police official) to face such charge / allegation but shall also result in hitting the conscious of people at large thereby shacking the security which otherwise is assured by Government through Law Enforcing Agencies. Thus, there can be no denial to the legal position that the case of such an accused (police official) would not be considered on same pedestal as that of an ordinary accused.

10. The perusal of the record shows that huge amount of bhatta / extortion money was recovered from his possession and as per investigation some of the amount was voluntarily paid by the applicant. The applicant / accused has not established or least pleaded any specific malafide on part of the complainant or the police which could justify that complainant or the police was so inimical towards the applicant / accused that such huge amount was arranged only to falsely involve the applicant / accused. In absence whereof, mere plea of the applicant / accused to have been falsely involved cannot be considered at bail stage because such stage only permits consideration of material, collected by the investigation and not of defence plea which too tentatively.

11. Further, the role, acted by the applicant / accused in commission of present offence, prima facie appear to be falling within meaning of Section 6 and 7 of ATA, 1997 because after kidnapping the complainant, they kept him under their (applicant’s and other police officials) confinement and tortured which resulted in obtaining the huge amount from family of the complainant as extortion. The place of detention and torture is not alleged to be an ordinary place but a police station. The name of police station normally should result reflecting a sacred place where the innocent should step in with confidence, assurance of security and an action against criminal but if one, in authority, uses such place for a complete different purpose i.e ‘heaven for criminal and hell for innocents’ then the person, alleged to be guilty would not be entitled to discretion to be stretched in his favour as normally an ordinary person can insist.

12. As far as arguments of learned counsel for applicant that FIR is delayed, in our view has no weight. As in such a like cases the people / victim(s) / family(is) ever remain under fear, coercion and compulsion and may not dare to even disclose the facts to their elders or community people. It be kept in view that in the instant matter the police official (s) were also accused therefore, reluctance to go to police station was also quite believable because it shall require much dare to report against police official (s) at their own place i.e police station. Same is the position in this case as the complainant has clearly contended that he was encouraged by his relatives, therefore, he got his case registered. In this respect, the delay so caused has been explained plausibly and same is not helpful for the applicant. Each case has its own merits and circumstances, therefore, delay in every criminal case cannot be presumed to be fatal for the prosecution case because, mere delay in lodgment of FIR alone is not sufficient to claim release on bail.

14. The huge amount has been shown to have been recovered from the applicant as well as from co-accused and as per charge sheet about 1500000/- have been recovered from all three accused and the said amount being huge was not possible for I.O. or even complainant to arrange and foist against the applicant / accused. In such situation, agony faced by the victim family corroborated by the recovery of extortion money from the applicant and looking to peculiar circumstances of the case, law and order situation in the city we are not inclined to deem it fit case for bail. The offence with which the applicant has been charged falls under prohibitory clause of section 497(i) Cr.P.C. Therefore in our view, instant application is devoid of merits and consequently is dismissed.

15. Needless to mention that the observation made hereinabove are tentative in nature and trial Court would not get influence while deciding the case on merits.

The above are the reasons for short order dated 04.11.2016, whereby instant application was dismissed.

Judge

Dated 18.11.2016

Riaz / P.S*