FARHAT HUSSAIN SHAH and another vs THE STATE and others

ORDER

' CH. IJAZ AHMED, J.---Petitioners are involved in a case F.I.R. No,489 which was registered at Police Station Gulberg, Lahore on 1Q-5-2009 under section 406, P.P.C. Petitioner Hussnain Azhar Shah was granted bail before arrest by the learned Additional Sessions Judge, Lahore vide order dated 27-7- 2009 whereas bail before arrest of Farhat Hussain Shah was dismissed by the learned Additional Sessions Judge vide order dated 6-10-2009. Complainant being aggrieved filed Criminal Miscellaneous No,12247/BC/09 for cancellation of bail granted to Hussnain Azhar Shah whereas Farhat Hussain Shah filed Criminal Miscellaneous No,13195/B/09 for grant of bail before arrest. The learned High Court, vide impugned order, accepted the petition filed by complainant, cancelled the bail granted to Hussnain Azhar Shah and dismissed the petition filed by Farhat Hussain Shah.

Hence, these petitions.

2. Learned counsel for the petitioners submits that incident took place with regard to bargaining of the portion in Macca Tower and the last payment was made according to the contents of F.I.R., on 8-3-2007 through a cheque. The receipts were issued to the complainant by Irfan, alleged manager of Macca Tower. The F.I.R. Was lodged by complainant after a considerable delay of three years on 10-5-2009. The Investigating Officer found Hussnain Azhar Shah innocent and submited challan wherein his name was mentioned in column No,2 whereas the name of Irfan was mentioned in column No,l. He further urges that complainant has not filed suit for specific performance or recovery of said amount paid by him to Irfan. Petitioners have no connection whatsoever with Irfan or owner of Macca Tower. He further urges that it is civil dispute and in case contents of F.I.R. Be accepted as true, then it is a civil liability and does not create any criminal action.

3. Learned Additional Prosecutor General submits that Tariq Bashir Investigating Officer had declared Hussnain Azhar Shah as innocent but the Incharge of the investigating agency does not agree -with him, thereafter investigation was handed over to one Muhammad Boota who had found petitioners guilty. He further urges that prima facie sufficient evidence is available to connect Farhat Hussain Shah with the commission of offence as the cheque amounting to Rs,4,00,000 was deposited in his account which was also verified from the concerned bank.

4. Learned counsel for the complainant submits that complainant has no enmity with the petitioners at all to falsely implicate them in this case and in fact they are involved in this transaction. The offence committed by the petitioners, in fact falls under section 419, P.P.C. Which was subsequently added vide Zamni No,37.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that matter pertains to the civil liability coupled with the fact that complainant had paid Rs,1,500,000 to Irfan co-accused who had given receipts in token thereof. It is also submitted by the parties and admitted that owner of Macca Tower is Maqsood Butt. Prima facie, it is not believable that such a huge amount was paid by the complainant to Irfan without verifying the owner of Macca Tower. The learned Additional Sessions Judge while granting bail before arrest to Hussnain Azhar vide, order 27-7-2009 had noted all these aspects of the case in para 6 of the order. The observations in para 6 of the order by the learned Additional Sessions Judge were not brought into the notice of the learned High Court at the time of deciding these petitions. There is no document on record showing direct receipt of money by the petitioners instead all the receipts were issued by Irfan. The cheque amounting to Rs,4,00,000 was admittedly a self/cash cheque and was not in anyone's name. Mere reading the impugned F.I.R., allegations of mala fide and ulterior motive are borne out without adverting to any other document, therefore, reasonable suspicion having been created due to which it reveals that complainant party was unable to produce any solid evidence about commission of offence of forgery by the petitioners coupled with the fact that dispute is the outcome of civil rights in respect of sale qua portion of the property in question. F.I.R. Was lodged after 3 years without satisfactory explanation for such delay.

It is settled law that mere heinousness of allegations should not stand in the way of grant of pre- arrest bail to accused if he is otherwise qualified to grant of the same. The material brought on record revealing that it was not established beyond reasonable doubt that petitioners are guilty of an offence punishable with death or imprisonment for life, then petitioners, are entitled for grant of bail. It is settled law that provisions of section 498, Cr.P.C. Are intended to be used very sparingly in exceptional cases where mala fide is patent or even latent. In the case in hand, mala fide is found on the surface in view of peculiar circumstances of the case. See Jamaluddin's case (1985 SCM R 1949).

6. In view of foregoing reasons, prima facie, case of the petitioners falls within the category of further inquiry. Resultantly, both the petitions are converted into appeals and are allowed.

Impugned orders of the learned High Court dated 30-10-2009 are set aside and petitioners are admitted to bail subject to furnishing surety bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. The petitioners are directed to join the investigation as and when required by the Investigating Officer and in case petitioners fail to join the same, then law will take its own course.

7. The observations of this Court are tentative in nature and shall not cause any influence to the courts below in any manner in the further proceedings.