Jan Alam vs The State

ORDER

RAJA SHAKEEL AHM AD, J. Petitioner/accused being failed to secure the relief of his pre arrest bail from the Court of Learned Sessions Judge/Special Judge, FIA Gilgit surrendered himself before this court for his pre arrest bail from this court, involved in Case FIR No. 13/2021 dated 16/07/2021 under above mentioned sections registered at Police Station FIA Gilgit.

Facts of the case as mentioned in the FIR are that on application of the complainant inquiry No. 26/2020 was conducted and after completion of Inquiry on 16/07/2021 FIA Gilgit Lodged the FIR No. 13/2021 against the petitioner/ accused and co-accused namely Abdul Rauf Halqa Patwari, under sections 409, 471, 468, P.P.C. and section 5(2) Prevention of Corruption Act 1947, alleging therein that, in the year 2001, in collaboration with Halqa Patwari Abdul Rauf has tampered with Tracing Cloth (Latha) by including 9 Karam land in Khasra No.. 1792 and 6 Karam in Khasra No.1084, which are in the name of petitioner/accused, out of the land measuring 39 Kanal 10 marla under Khasra No.1794 situated at KKH Muaza Minawar Gilgit owned by the complainant.

3. The learned Counsel for the accused/petitioner argued that, it is of sublime importance that Civil litigation between the accused/petitioner and complainant on the same subject matter is sub judice before the Court of learned Senior Civil Judge Gilgit since 2010, and trial of the case is at final stage, the complainant falsely implicated the petitioner/accused in the instant case just to harass and humiliate him to get the ulterior motives and with the collaboration of the FIA police harassing the petitioner. The learned counsel further contended that the FIA has no jurisdiction to lodge the instant FIR because the relevant Khasra is part of that disputed land which is under litigation and yet to be decided by the court of competent jurisdiction. The learned counsel further contended that, the object of the above FIR is mala fide and on the basis of above FIA Police want to arrest the petitioner, he stated that the co-accused Abdul Rauf Patwari has been released under section 169, Cr.P.C. during course of investigation despite the fact that the role of the co-accused Abdul Rauf was even more grievous being relevant revenue official and custodian of the alleged tampered Tracing Cloth. The learned Counsel for the petitioner further contended that the case of the FIA is based on official record which is already in the custody of the FIA police nothing has to be recovered from the accused even after his arrest. He further submitted that the petitioner belongs to a respect-able family and is a Government Servant having a good reputation in the area, in case of his arrest he will suffer and shall be humiliated. At the end the counsel for the petitioner contended that the time of alleged occurrence mentioned in the FIR is in the year 2001 i.e. 20 years back and no explanation for such long delay is given in the FIR which makes the case of prosecution doubtful and after release of co-accused the case of the present petitioner falls under the ambit of further inquiry and the rule of consistency also applies in the case, hence the petitioner is entitled for pre-arrest as right.

4. Conversely the learned S.H.O. Police Station FIA Gilgit vehemently opposed the contention of the learned counsel of the accused and argued that the FIR is lodged on the basis of the inquiry and accused is directly nominated in the FIR found involved in the commission of alleged offence. The offences alleged against the petitioner are heinous in nature and the prosecution has ample evidence to connect the accused with the commission of offence, the accused is not entitled for any leniency as he tampered the official record with collaboration of Halqa Patwari Abdul Rauf. He further argued that, pre-arrest bail is an extra ordinary relief which cannot be granted sparingly.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the record of the case minutely. It is on the record that a Civil litigation between the accused/petitioner and complainant on the same subject matter is sub judice before the Court of learned Senior Civil Judge Gilgit since 2010, and trial of the case is at final stage, hence it could be safely inferred that the complainant had mala fidely involved the accused/petitioner in the instant case just to harass and humiliate the petitioner to get his ulterior motives.

The co-accused Abdul Rauf Patwari has been released under section 169, Cr.P.C. during course of investigation despite the fact that the role of the co-accused Abdul Rauf was even more heinous and grievous being relevant revenue official and custodian of the alleged tampered Tracing Cloth, hence the rule of consistency is fully attracted in the instant case and it also creates doubts about the involvement of the accused in the instant case, the benefit of slightest doubt should go to the accused even at bail stage. The case of FIA is based on official record which is already in the custody of the FIA police, nothing has to be recovered from the accused even after his arrest, hence the arrest of accused may be presumed not fruitful for further investigation. The petitioner belongs to a respectable and noble family, is a Government Servant having a good reputation in the area, and have no previous criminal record hence entitled for concession of bail on humanitarian grounds also. The record reveals that the time of alleged occurrence mentioned in the FIR is in the year 2001 i.e. 20 years back and no explanation for such long delay is given in the FIR which makes the case of prosecution doubtful.

6. There is no denial to this fact that the petitioner is nominated in the FIR with an allegation that he in collaboration with co-accused Abdul Rauf Halqa Patwari tampered the tracing cloth, but from the facts and circumstance when evaluated a question arise whether the accused/petitioner was the custodian of the official/revenue record? The answer is in negative and when the co-accused Abdul Rauf Halqa Patwari who was the custodian of the record, presumably he might have tampered the tracing cloth, was released under section 169, Cr.P.C. when the S.H.O. FIA present in court was confronted with the situation instead of giving any clarification on the scenario, he again repeated his arguments that the accused is not entitled for the extra ordinary relief hence his ad- interim bail may be recalled. If at all it is presumed, that the pre-arrest bail is an extra ordinary relief and for the sake of arguments, if the petition in hand is dismissed on this technical ground, the petitioner would be entitled to post arrest bail on the principle of consistency soon after the pronouncement of the order by this Court. Basic Law is bail and not jail, hence by sending the petitioner behind the bars no useful purpose would be served.

7. Resultantly by allowing this petition, ad-interim bail already granted to the petitioner in terms of order dated 23.10.2021 is hereby confirmed, his bail bonds in sum of Rs.200000/- (Two lac) with two local sureties each in the like amount already submitted in compliance of order dated 23.10.2021 are accepted. Petition allowed. File.