SAMEEN JAN (NAIB TEHSILDAR) and another vs STATE and another
This petition for leave to appeal arises from an order of the Lahore High Court refusing post-arrest bail to the petitioners, a Naib Tehsildar and a Girdawar, in a case involving offences under Sections 420, 468, and 471 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947 relating to the attestation of a mutation based on a fake Permanent Transfer Deed. The core legal question was whether the petitioners were entitled to post-arrest bail where the record lacked prima facie evidence of criminal intent, knowledge of the forgery, or benefit from the transaction. The Supreme Court converted the petition into an appeal and allowed it, holding that the case called for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, as the offences did not fall within the prohibitory clause, the petitioners were not beneficiaries, and bail should not be withheld as a form of premature punishment.
- Whether public servants attesting a mutation based on a fake document are entitled to post-arrest bail in the absence of prima facie criminal intent or knowledge of forgery?
- Are the considerations for the cancellation of bail the same as those for the initial grant of bail?
- Does an offence falling outside the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 warrant the grant of bail when further inquiry into guilt is called for under Section 497(2)?
- Can pre-arrest bail be cancelled without establishing any misuse or abuse of the concession of bail by the accused?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Asif Saeed Khan Khosa, J.--Through this petition Sameen Jan and Muhammad Irfan Khalid petitioners have sought leave to appeal against the order dated 16.11.2010 passed by the then Honourable Chief Justice of the Lahore High Court, Lahore in Criminal Miscellaneous No, 11986-B of 2010 whereby post-arrest bail was refused to the petitioners in case FIR No, 167 registered at Police Station Anti-Corruption Establishment, Lahore on 27.10.2009 in respect of an offences under Sections 420, 468 and 471, PPC read with Section 5(2) of the Prevention of Corruption Act 1947.
2. After hearing the learned counsel for the parties and going through the relevant record appended with this petition we have observed that the allegations levelled against the petitioners pertain to their roles in attestation of a mutation on the basis of a Permanent Transfer Deed which was subsequently found to be a fake document. Sameen Jan petitioner was a Naib Tehsildar at the time of attestation of that mutation and Muhammad Irfan Khalid petitioner was a Girdawar at that time. We have repeatedly and searchingly required the learned Additional Prosecutor-General, Punjab appearing for the Sate to refer to and material available on the record prima facie disclosing any criminal intent on the part of the petitioners in the transaction in issue but, apart from the respective roles played by the petitioners in attestation of the mutation is question, he has not been able to point out any material which could even tentatively hint at involvement of the petitioners in the forgery of the relevant Permanent Transfer Deed or could suggest that the petitioners were knowing or willing parties to the alleged conspiracy. It is not disputed that the petitioners were not the beneficiaries of the alleged forgery, etc. and so far no allegation has been levelled against them regarding accepting any bribe for the purpose of attestation of the relevant mutation. The learned Additional Prosecutor-General has also remained unable to show that the petitioners knew at the relevant time that the Permanent Transfer Deed in question was a fake document. The learned counsel for the petitioners has pointed out that it was at the instance of Sameen Jan petitioner himself that the relevant mutation was subsequently reversed after it had been brought to his notice that genuineness of the Permanent Transfer Deed in question was doubtful. It is admitted at all hands that the disputed mutation based upon the Permanent Transfer Deed in question still stands intact on the basis of an order passed in that regard by the Lahore High Court, Lahore.
3. It is not disputed that initially both the petitioners had been admitted to pre-arrest bail by the learned trial Court but subsequently their bail was cancelled by the same Court without attributing any misuse or abuse of the concession of bail to them. The learned trial Court ought to have known that considerations for grant of bail and those for its cancellation are entirely different. Some of the offences allegedly committed by the petitioners are bailable and the remaining offences invoked in the FIR do not attract the prohibitory clause contained in sub-section (1) of Section 497, Cr.P.C.
The investigation of this case has already been finalized and, thus, physical custody of the petitioners is not required at this stage for the purpose of investigation.
In these circumstances continued custody of the petitioners in jail is not likely to serve any beneficial purpose at this juncture. It is trite that the concession of bail ought not to be withheld by way of premature punishment. Both the petitioners are public servants and there is little likelihood of their absconding in case of admission to bail.
4. For what has been discussed above the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of Section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and, resultantly, Sameen Jan and Muhammad Irfan Khalid petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs, 10,00,000/-(Rupees one million only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.