MUHAMMAD EJAZ Versus State

ORDER

ASIF SAEED KHAN KHOSA, J .--Through this consolidated order I propose to decide Criminal Miscellaneous No.1653-B of 2004 filed by Muhammad Ejaz petitioner, Criminal Miscellaneous No.1767-B of 2004 preferred by Malik Muhammad Sadiq petitioner and Criminal Miscellaneous No.1817-B of 2004 submitted by Haji Ijaz Ahmed and Muhammad Nawaz petitioners together as through all these petitions the above mentioned petitioners have sought pre-arrest bail in the same criminal case, i.e. case F.I.R. No.317 registered at Police Station Qilla Gujjar Singh, Lahore on 17-6-2003 for offences under sections 406/420/468/471/477-A, P.P.C. Earlier on different petitions filed by the present petitioners before the Court of Session, Lahore seeking the same relief had been dismissed by the learned Additional Sessions Judge, Lahore through a consolidated order, dated 23-2-2004. Hence, the present petitions before this Court.

2. After hearing the learned counsel for the parties at some length and going through the record of this case it has straightaway been observed that in the F.I.R. no specific allegation had been levelled by the complainant against any particular petitioner and the allegations contained in the F.I.R. were levelled in collective and generalized terms. It may be true that the report of the Forensic Science Laboratory, dated 3-11-2003 shows that some mechanical erasure had been found in the relevant document but that report did not, and it could not, point out as to who had committed such mechanical erasure. It may be of some relevance to mention here that the vendors of the property in issue have not so far come forward before any forum to allege that the words or the lines in the relevant deed purported to have been added subsequently were not a part of the original deed. It is available on the record that in their report, dated 18-9-1998 which report had been prepared upon the orders of this Court, the Tehsildar, Lahore City as well as the Tehsildar, Lahore Cantt. had found that the petitioners were bona fide purchasers of the relevant property through registered sale-deed and even the Provincial Mohtasib had refused to accept the complainant's allegations against the petitioners as correct. The record further shows that in his report, dated 12-2-201 the Additional Deputy Commissioner (General)/Collector, Lahore had found that the complainant party had itself scald some land in excess of his own entitlement and, thus, it did not lie in the mouth of the complainant party to complain against the present petitioners. The record also reveals that in his inquiry report, dated 18-2-2004 the Sub-Registrar, Allama Iqbal Town, Lahore had also concluded in favour of the petitioners party and against the complainant party. The learned counsel for the complainant has, however, pointed out that the Settlement Officer, Lahore had opined in his report, dated 19-0-2002 that the petitioners were in occupation of an area in excess of their entitlement. He has gone on to point out that even the relevant Local Council had also issued a notice to the petitioners to demolish the superstructure built by them upon the area in dispute because that area fell in excess of the petitioner's entitlement. All these divergent reports and factors clearly establish that there is a genuine dispute between the parties regarding the true nature and extent of the transaction between the petitioners and the original vendors of the relevant property and that the dispute in issue has all the trappings of a legitimate civil dispute. It may be of critical importance to mention here that a civil suit regarding the same dispute is already pending before a civil Court at present and the complainant party of this case has already applied before the civil Court for being impleaded as a party to the said suit. Adverting to the all important consideration regarding mala fide implication of the petitioners in the case in hand, a consideration which is 'a pre-requisite of admission of an accused person to pre-arrest bail in a criminal case, the learned counsel for the petitioners have maintained that the original vendors of the property in dispute have not so far lodged any complaint before any forum to allege any forgery or interpolation having been committed by the petitioners or regarding the petitioner's occupation of an area in excess of their entitlement and the above mentioned report prepared by the Sub-Registrar, Allama Iqbal Town, Lahore on 18-2-2004 records that the deed-writers as well as the local commissions/Advocates have already sworn affidavits confirming that the alleged interpolations in the relevant deed were part of the original deed itself and the same had not been incorporated in the deed at a subsequent stage. The learned counsel for the petitioners have also maintained that the petitioners are nothing but bona fide purchasers of the property in dispute and the civil suit in respect of the dispute in issue has been pending before the civil Court since the year of 2000 but the complainant had chosen to lodge the F.I.R. in this case in the year 2003 and, thus, it was, according to them, quite obvious that the complainant party had tried to convert a civil dispute into a criminal case so as to bring the weight of criminal law to bear upon the petitioners in order to pressurize them in the matter. The learned counsel for the petitioners have further maintained that the alleged interpolations in the relevant deed did not affect the measurements of the land sold and, thus, the alleged interpolations have no bearing upon the allegation levelled in the F.I.R. regarding usurpation of excess land by the petitioners. According to them, even if some excess land was sold to the petitioners still the liability in that regard would fall upon the vendors and not upon the petitioners. They have, thus, vehemently maintained before this Court that 'a genuine and bona fide civil dispute has been transformed by the complainant party into a criminal case and such an exercise on the part of the complainant party smacks of mala fide on its part. In the above mentioned backdrop of this case such submissions of the learned counsel for the petitioners, have not appeared to this Court to be without any foundation or substance. The learned counsel for the State has confirmed the fact that the petitioners have already joined the investigation and the Investigating Officer present before this Court has categorically stated that nothing is to be recovered from the petitioners' possession at this stage as after completion of investigation a challan has already been submitted before the Court of competent jurisdiction. He has, however, maintained that the petitioner's custody is required by the police in connection with this case only in order to complete a formality. I may, however, observe in this context that liberty of a citizen is too precious and sacrosanct to be allowed to be sacrificed at the altar of a mere formality. It is trite that the concession of bail ought not to be withheld by way of premature punishment.

3. For what has been discussed above all the three above mentioned petitions are accepted and the ad-interim pre-arrest' bail already allowed by this Court to all the petitioners mentioned above are hereby confirmed subject to the furnishing of fresh bail bonds by the said petitioners in the sum of Rs.50,000 (Rupees fifty thousand only) each with one surety each in the dike amount to the satisfaction of the Area Magistrate of Police Station Qilla Gujjar Singh, Lahore within a period of two weeks from today.

4. Before parting with this order it may be clarified that the observations made in the present order shall be treated as tentative only and the same shall not prejudice the learned trial Court in any manner.

N.H.Q./M-326/L Pre arrest bail allowed.