MUHAMMAD YOUSAF and another vs STATE
The petitioners filed an application for post-arrest bail in F.I.R. No. 206 of 2005 registered under Sections 467 and 471 of the Pakistan Penal Code at Police Station City Wazirabad, District Gujranwala, concerning the alleged fraudulent transfer of properties using a general power-of-attorney. The core legal question was whether the petitioners were entitled to post-arrest bail given the nature of the allegations involving forgery and transfer of properties beyond the scope of the power-of-attorney, falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure. The Lahore High Court dismissed the bail application, holding that prima facie criminal acts were committed as the properties transferred, including urban properties and structures not existing at the time of the 1989 power-of-attorney, fell outside the scope of the authority granted. The key principle laid down is that the misuse of a power-of-attorney to transfer properties unauthorizedly, especially involving major offenses within the prohibitory clause, disentitles the accused to post-arrest bail.
- Whether an accused is entitled to post-arrest bail when charged under Section 467 of the Pakistan Penal Code falling within the prohibitory clause?
- Does a general power-of-attorney executed for agricultural land authorize the transfer of subsequently erected urban properties and structures?
- Whether the unauthorized transfer of properties through a power-of-attorney constitutes a purely civil dispute or discloses a prima facie criminal offense?
- Section 467, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioners filed this bail application for post-arrest bail in F.I.R. No, 206 of 2005, dated 31-8- 2005 under Sections 467 and 471, P.P.C. at Police Station City Wazirabad District, Gujranwala.
2.Briefly, accordingly to the F.I.R., complainant was owner of a piece of agricultural land. The complainant executed a general power-ofattorney meant to deal with the said land for mortgage, sale, gift and transfer etc., but according to the F.I.R., the Petitioner No, 1 got registered properties of the complainant in the name of his son, the Petitioner No,
2. These properties included Rice-Sheller including building, godown, cattle-shed, shops, electric motors, air-condition, and subsequently on 26-10-2005, residential house and four shops situated in Main Bazar Rasool Nagar.
3.The learned counsel for the petitioners has vehemently argued that Petitioner No, 1 was duly authorized as general attorney of the complainant to deal with the above-mentioned properties as he deemed fit. In furtherance of his arguments, the learned counsel contends that Rice Sheller, godown, shops etc., were constructed by the Petitioner No, 1 himself; agricultural land was handed over to him in 1989, as general attorney. Likewise, the machinery was also installed by Petitioner No, 1 as an improvement on the property of his brother. According to him, all the transactions done in favour of Petitioner No, 2 were legal as the same were authorized by the general power-of- attorney, therefore, no forgery or cheating could be alleged against him. The learned counsel further submits, at the most, allegation of exceeding power could be levelled against Petitioner No, 1 for which remedy lies with the Civil Court. In addition to the above arguments, the learned counsel submits that Petitioner No, 1 is a heart patient and he has already undergone a heart surgery.
According to him, Petitioner No, 2 is a minor, therefore, he also deserves to be released on bail.
4. On the other hand, learned counsel for the complainant submits that Petitioner No, 2 is not a minor. He was born on 13-1-1987; therefore, he is aged 19 years. He further submits that power -of- attorney was given to look after the land for the agricultural purposes but not to deal with other properties, erected or constructed on the said land. The learned counsel submits that not only the land and properties thereon were transferred by Petitioner No, 1 in favour of Petitioner No, 2, Petitioner No, 1, in collusion with the Revenue Department, got registered complainant's properties which are situated in the Main Bazar of Rasool Nagar Town.
5.Learned counsel for the State submits that registries were actually made by Petitioner No, 1 in favour of Petitioner No,
2. He also submits that in this case charge has been framed and Section 467, P.P.C. incurs 10 years R.I., therefore, the offence falls within the prohibitory clause of Section 497, Cr.P.C. He also opposes grant of bail at this stage, it is very strange that such a large number of properties mentioned in F.I.Rs, were transferred by Petitioner No, 1 in favour of Petitioner No, 2 for which the learned counsel for the petitioner seeks justification from the general powerof-attorney which was given in 1989 when these properties were not even in existing. Bare reading of the general power-of-attorney indicates that it was meant for the property, which at that time was an agricultural property, Likewise, the properties of the petitioner i,e,, residential house, our shops are situated in the main Bazar of Rasool Nagar Town. They were also transferred and registered in the name of Petitioner No,
2. These properties do not form part of the land for which the general power- of-attorney was executed by the complainant in favour of the Petitioner No, 1 on 6-3-1989. The above facts clearly show that prima facie criminal acts were done by the petitioner, therefore, registration for F.I.R. cannot be disputed and it is not correct that matter only relates to jurisdiction of a Civil Court.
6.In view of the foregoing reasons, this application is not allowed, hence dismissed.