HABIB MUSTAFA and 2 others vs THE STATE and another
This matter arises from a petition for pre-arrest bail filed by Habib Mustafa and two others in respect of an F.I.R. registered under sections 420, 468, and 471 of the Pakistan Penal Code 1860 at Police Station Batapur, Lahore. The core legal question concerned whether pre-arrest bail should be granted when the criminal matter involves a disputed agreement to sell that is already the subject of pending civil suits for specific performance and cancellation between the parties before a competent civil court. The Lahore High Court held that since the genuineness of the document in question is directly and substantially in issue before the civil court, it is inappropriate to delve into the details to avoid prejudice. The court ruled that the case falls under further inquiry as contemplated by subsection (2) of Section 497 of the Code of Criminal Procedure 1898, and that no recovery of the document was required as it formed part of the challan file. Consequently, the pre-arrest bail was confirmed, laying down the principle that criminal proceedings involving documents sub judice in civil courts for determination of authenticity may warrant further inquiry under Section 497(2), Cr.P.C.
- Whether pre-arrest bail should be granted when the genuineness of a document forming the basis of a criminal charge is directly in issue in pending civil suits?
- Does a criminal case involving a disputed agreement to sell already pending adjudication before a civil court attract further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can pre-arrest bail be confirmed when the allegedly forged document is already part of the judicial record and no further recovery is required?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' CH. IFTIKHAR HUSSAIN, J.- Petitioners Habib Mustafa, Aqeel Ahmad and Muhammad Akram by way of the instant petition have prayed for prearrest bail in case F.I.R. No, 496 registered under sections 420/468/471, P.P.C, with Police Station Batapur, Lahore on 5-12-2009.
2. Briefly the prosecution case as per the F.I.R, is that Aqeel Ahmad (petitioner No,2) obtained thumb-impression of the complainant on a plain stamp paper worth Rs.100 and thereafter he in connivance with the other accused mentioned in the F.I.R, has converted the same into an agreement to sell fictitiously in respect of 24-Kanals of land in his favour and thereafter brought civil suit on the basis of the same.
3. After hearing the learned counsel for the parties and going through the record, I find that one thing is patently available from the own showing of the complainant in the F.I.R, that Aqeel Ahmad (petitioner No,2) has brought suit on the basis of the alleged forged and fictitious agreement to sell.
4. The same is statedly pending in the Court of Rao Furqan Ahmad, learned Civil Judge, Lahore. The learned counsel for the petitioners has shown me the copy of the plaint in the suit for specific performance of the contract with permanent injunction brought by petitioner No,2 Aqeel Ahmed against complainant Muhammad Jahangir.
5. It has also been pointed out by the parties that the complainant has also brought suit for declaration along with cancellation of agreement to sell dated 9-2004, i,e, the document in question. The same statedly is pending before the same learned Court. The learned counsel for .The complainant has also shown me the copy of the plaint in that suit. It shows that both the suits of the parties are pending before a competent Court. This fact would show that the question of genuineness or otherwise of the said document is directly and substantially in issue question before the competent civil court and any verdict regarding the same is to be returned therefrom. I, therefore, do not think it appropriate to go into the detail of the same at such a stage, lest it may be prejudicial to any party at any subsequent stage in any manner.
6. However, I am of the considered view that due to such fact, the above case against the petitioners is amply covered under subsection (2) 497, Cr.P.C, calling for further inquiry into their guilt.
7. They, according to the Investigating Officer have joined the investigation before the DSP. I have been informed that the document in question is with the Challan file, of the Court of the learned Magistrate concerned. The learned counsel for the complainant has pointed out that the petitioners' side has applied for interim custody (Superdari) of the same. The learned counsel for the petitioners but states that the same has not yet been delivered to them. Hence, there is no question of recovery of the said document involved in the present matter. I, therefore, find that they have made out a case for prearrest bail. The petition;, therefore, is accepted and the ad interim pre-arrest to them is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000 (Rupees one hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
8. The petitioners, however, are directed to join the investigation again, if and when, may be so required.
Pre-arrest .