MUHAMMAD YAR and 2 others vs STATE

ORDER

Through this application under Section 498 Cr.P.C. Muhammad. Yar, Abdul Hameed and Abdul Aziz, petitioners seek pre-arrest bail in a case FIR No. 222-2006, dated 24-09-2006 registered under Sections 379 PPC and Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 at Police Station Piplan, District Mianwali on the application of Mst. Riaz Sultana Khokhar, the complainant.

2. The brief facts of the case are that about one and half years earlier Makhan Khan, husband of the complainant died leaving behind the complainant and his children as legal heirs and also some agricultural land situated in Chak No.1/ML Rukh Nasurwala and there were also a residential house and so many trees planted in the said land. On 26-5-2005 the complainant leased out her land measuring 25 acres to the petitioners for consideration of Rs. 70,000/- for one year till 01.04.2006. On 15-09-2006, she visited her land and found that 50-trees valuing Rs. 95,000/-, window, doors and bricks of the house were missing and in the area of one acre the earth had been dug. There-after she met the respectable of the vicinity, who told her that present petitioners alongwith others on different occasions had cut down the trees, removed the structure of the house and taken away earth/soil in the Tractor Trolley. The complainant alongwith the said PWs then approached the petitioners, who after some hesitation admitted the commission of offence and promised to pay compensation, but later on refused to do so.

3. The learned counsel for the petitioners has contended that the petitioners have been falsely implicated in the present case, who were earlier tenants of the husband of the complainant and Abdul Hameed (Petitioner No.1) had entered into an agreement to sell with Makhan (husband of the complainant) and Mst. Shahnaz Bibi in March, 2003 for a consideration of Rs. 50,00,000/- out of which an amount of Rs. 40,00,000/- was paid as an earnest money and sale-deed was to be executed after paying the remaining Rs. 10,00,000/- till March, 2006; that the petitioners are owners of the said land as 80% amount was paid, but case has been registered with malafide intention by the complainant to usurp the said amount; that the petitioners have also filed a suit for specific performance of the agreement on 23-09-2006 as the complainant failed to honour the said agreement and on the next day i.e. 24-09-2006 got registered this case against the petitioners only to pressurize them for vacation of the disputed land and the purpose of the complainant will be served, if the bail application of the petitioners is dismissed, who are entitled to the concession of pre-arrest bail.

4. The learned State counsel has opposed this bail petition on the ground that the petitioners are named in the FIR and recovery of stolen property is yet to be effected.

5. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.

6. This case was registered on 24-09-2006. The allegation has been levelled against the petitioners that they had taken the structure of the complainant's house, which was constructed over the disputed land of the complainant and also made loss while cutting the valuable trees. The contention raised by the learned counsel for the petitioners is that an agreement to sell had been arrived at between the late husband of the complainant and Abdul Hameed, petitioner No. 1 in the year 2003, according to which an amount of Rs. 40,00,000/- had been paid as an earnest money out of total consideration of Rs. 50,00,000/- at the time of execution of the agreement. It casts serious doubt that when the 80% amount had already been paid, why another period of 3-years was settled to complete the sale-deed, which could easily be done within a short span to become complete owner after the payment of remaining Rs. 10,00,000/- only. The possibility cannot be ruled out that the petitioners, who were tenants of the husband of the complainant after his death had prepared the agreement to sell to deprive the widow and her children from their valuable property as such a tendency is being developed in the society and the Courts are taking notice thereof.

7. As far as the contention of the learned counsel for the petitioners that a civil suit for specific performance of the agreement had been filed on 23-09-2006 and this case has been got registered on the next day as a counter blast is concerned, to my view the complainant could not have knowledge about the filing of the suit by the petitioners on the very next day of its institution in the Court, but on the other hand, the possibility cannot be ruled that the petitioners, who had allegedly committed the offence of theft and having knowledge that the complainant was trying to get registered a criminal case against them, they had managed to file the said suit by preparing the so called agreement to sell. Even otherwise, mere execution of agreement to sell is not sufficient to declare Petitioner No. 1 as owner of the land owned by the complainant. Specific allegation of theft has been levelled against the petitioners and the recovery is yet to be effected from them. Moreover, the conduct of the petitioners before the Court of first instance was that they after the grant of ad-interim pre-arrest bail had failed to appear in the Court on the next date fixed for final hearing. The bail before arrest is an extra ordinary relief, which is meant to protect the innocent citizens, if they are found to have been falsely involved in this case. The contentions raised by the learned counsel for the petitioners are not sufficient to hold that the petitioners have been falsely implicated in the present case, but the conduct of the petitioners is not found to be above the board.

For the foregoing reasons, I do not find any merit in this application, which is dismissed.