AMANULLAH Versus State
ORDER
AQEEL AHMED ABBASI, J.--- Being aggrieved and dissatisfied with the order dated 20-4-2011 passed by learned Presiding Officer, Special Court Sindh Public Property (Removal of Encroachment) Karachi in Cr.B.A. 20 of 2011 arising out of F.I.R No.21/200 registered under section 8(i) Sindh Public Property (Removal of Encroachment) Act, 2010, whereby the learned Special Court rejected the bail application of the applicant/accused, the applicant/accused has filed instant bail application before this Court seeking his release of applicant on bail.
2. Brief facts relevant for the purposes of disposal of instant bail application and the prosecution story as stated in the F.I.R. is as follows:--
"Complainant, I am posted as Mukhtiarkar, Gulshan-e-Iqbal Town, Karachi. AEDO under his signatures and orders has asked allottees of Naklas 118 Deh Okewari Gulshan-e-Iqbal Town, Karachi Town, namely, Samiullah Jang and Saleem Zaki to produce the documents of allotment of Naklas 118 Deh Okewari measuring 36 Acres allotted by Board of Revenue, Hyderabad Sindh for residential/commercial purpose and leased for 99 years. On this land Millennium Mall, Honda Show Room, Saima Mall, Megna Mall, Shan-e-Mughalia Shadi Hall, Shell Petrol Pump etc, are being used for commercial purpose. They were through Notice No.86 dated 26-1-2011, Notice No.98 dated 31-1-2011, Notice No.147 dated 25-2-2011 were called upon that they are violating the terms of their allotment and they have not got the survey of the land done. Therefore, if they have any legal documents they should produce the same in the office of AEDO Revenue, Karachi. They have not given any satisfactory reply. I claim that Samiullah Jang and Saleem Zaki and others are violating the terms of allotment of more than 36 Acres land allotted for residential and commercial purpose, therefore, action may be taken against them under Sindh Public Property Act, 2010. Report heard and found correct."
3. After investigation of the case, it appears that the applicant/accused namely, Amanullah was arrested and has been sent to jail.
4. Learned counsel for the applicant has vehemently argued that the arrest of the applicant in the instant crime has been made on account of mistaken identity of Samiullah Jang, who was nominated in the F.I.R. and has been granted interim pre-arrest bail by this Court. Per learned counsel, the applicant is an Advocate by profession and is an in-house lawyer, who is working for legal heirs of late Muhammad Azizullah Jang and Saleem Zaki. It is further stated by the learned counsel for the applicant that the instant F.I.R. and purported involvement of the present applicant is based on mala fides as no offence of encroachment in terms of section 8 of Sindh Public Property (Removal of Encroachment) Act, 2010 (hereinafter referred to said Act) has been committed by the applicant or the accused persons nominated therein. Per learned counsel, the complainant in the instant F.I.R. i.e. Mukhtiarkar, Gulshan-e-Iqbal Town, Karachi has recklessly started a campaign against lawful owners/lessees of various lands including the present land which were allotted or leased out for 99 years several years back, whereas the complainant i.e. Mukhtiarkar, Gulshan-e-Iqbal Town, Karachi, has got registered several F.I.Rs., containing vague allegations with ulterior motives and personal gain. Learned counsel further argued that the construction on the subject land was made decades ago. The petrol pump was constructed in the year 1965 or even before the Honda Show Room was constructed in the year 1993. Saima Mall and other Malls have been constructed in the year 2000 and 2005, whereas all such constructions were made according to approved plans, which were duly forwarded by Revenue authorities in accordance with law. Per learned counsel, the lease of the land is for 99 years, which was granted in the year 1962 for thirty years and thereafter in 1991 it was renewed for 99 years. Per learned counsel, in respect of such land, in the year 2001 the revenue authorities had invoked the Ordinance III of 2001 and had demanded differential amount from the land owners. The owners of the land had filed Suit No.1244 of 2002, however, at the same time the owners of the land had deposited differential amount under protest with land committee, which will be claimed refund after judgment in the suit. It is further submitted that on 23-12-2000 interim orders were passed in Suit No.1244 of 2002, which were duly confirmed on 19-5-2008. Learned counsel further submitted that in Suit No.1116 of 1991 filed by Muhammad Azizullah Jung v. The Deputy Commissioner, Karachi East and another, survey in respect of subject land was made on the directions of the Court, whereby Commissioner's Report dated 27-5-1999 by Messrs M. Ishaq Khan Associates as Consulting Engineers and Cost Consultants Surveyors, wherein it was stated that out of area of 36 acres leased out to the plaintiff in the suit, the area of only 34.369 was found in possession, whereas 1.394 acres was left unoccupied out of such land. It is further stated that similar report dated 14-7-1999 was submitted by the then Deputy Commissioner (East) Karachi i.e. Khusro Pervaiz Khan, who narrated the same facts. Learned counsel for the applicant states that in spite of all these proceedings and survey reports submitted by the government officials in respect of same subject land and the civil litigation in this regard, wherein stay has been granted by Hon'ble High Court in the above mentioned suits. The complainant has proceeded against the applicant/accused in the garb of proceedings under section 8 of the said Act, which proceedings are liable to be quashed. However, coming back to the merits of the instant application, learned counsel for the applicant submitted that neither the applicant has been nominated in the F.I.R., whereas admittedly he has been arrested under a mistaken identity. None of the ingredients of section 8 are attracted in the instant case, whereas no role whatsoever has been assigned to the applicant in the instant alleged crime. The applicant is an Advocate by profession and is providing legal services to the legal heirs of late Muhammad Azizullah Jung. The allegation besides being false and frivolous requires further inquiry into the matter. Per learned counsel, no incriminating material has been recovered from the applicant, who has been sent to jail and not required for further inquiry. It has been further argued that the minimum sentence for the alleged offence is one year hence the same does not fall within the prohibitory clause. Learned counsel for the applicant has prayed that the applicant/accused may be released on bail. Learned counsel has placed on record copy of an order in Bail Application No.251 of 2011 in the case of Malik Mohammad Asghar v. The State emanating from F.I.R. No.5 of 2011 under section 8(1) of the said Act, which was registered at Police Station Anti-Encroachment Sindh, passed by the learned Single Judge of this Court, wherein applicant has been admitted to bail Learned counsel further states that this Court has also granted bail under similar section of the said Act, in Criminal Bail Applications No.444 to 448 of 2011.
5. Conversely, the learned A.P.-G. has raised objection as to maintainability of the instant criminal bail application on the ground that the offence is covered under the provisions of Special Law i.e. Sindh Public Property (Removal of Encroachment) Act, 2010, therefore, bail application under sections 497 and 498, Cr.P.C. before this Court is not maintainable. Learned A.P.-G. also referred to provisions of Section 11 of the said Act, wherein bar of jurisdiction and abatement of suits has been given. In support of his contention, learned A.P.-G. has also referred to CNS cases wherein, per learned A.P.-G., earlier, Division Bench used to hear bail applications, however, after orders of the Hon'ble Chief Justice, such cases are being heard by the learned Single Judge of this Court. Learned A.P.-G. states that bail application either can be heard by a Division Bench of this Court or alternatively by the learned Single Judge of this Court in its constitutional jurisdiction. Learned A.P.-G. further argued that since this is a special law having its special purpose i.e. to avoid encroachment over public land, therefore, Special Court has been established in this regard, whereas under the provisions of said Act, no provision of bail has been provided.
6. While responding to the objection of maintainability of instant bail application the learned counsel for the applicant has vehemently opposed the contention of the learned A.P.-G. and submitted that the instant objection, besides being misconceived in law and fact, is based on mala fides as no such objection was raised by the prosecution when the bail was granted by this Court in the above referred cases. It is further argued that the contention of the learned A.P.-G. to the effect that there is no provision of bail in the said Act, is misconceived in fact and law as the learned Presiding Officer of Special Court of Sindh Public Property (Removal of Encroachment) Act, Karachi has been entertaining the bail applications, whereas the instant bail application of present applicant was also heard and dismissed by the learned Presiding Officer vide his order dated 20-4-2011, which has been assailed by filing instant bail application before this Court. It is further contended that there is no prohibitory clause provided in the said Act, whereas by virtue of section 27, it has been provided that "an appeal against the order passed by a Special Court shall lie to the High Court of Sindh." It is further argued by the learned counsel for the applicant that in CNS cases as well as cases pertaining to Special Laws including Special Courts Central and Special Courts Anti-Corruption (Provincial) bail applications are being heard by a Single Bench of this Court. Learned counsel, while concluding his arguments submitted that the objection is misconceived in law and facts, hence liable to be dismissed In support of his contention, learned counsel has placed reliance on the following judgments:
(1) Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607
(2) Saleem Hussain v. State PLJ 1996 Cr.C. (Lahore) 916
(3) Imam Bux alias Mama alias Akhtar and another v. The State 2003 PCr.LJ 643
(4) Haji Ghulam Ali v. The State through A.G. N.W.F.P, Peshawar and another 2003 SCMR 597
7. I have heard the learned counsel for the applicant as well as learned A.P.-G., perused the record and the case law relied upon by both the parties.
8. Before adverting to the merits of the bail application, I would respond to the legal objection raised by the learned A.P.-G. as to the maintainability of the instant bail application, and would examine the jurisdiction and authority of this Court to release an accused person on bail, nominated under the provisions of the said Act. It would not be out of place to observe that under somewhat similar circumstances, bail before arrest as well as after arrest has been granted by this bench as well as by other benches of this Court pertaining to the said Act in Criminal Bail Applications No.444 to 448 of 2011 and Criminal Bail Application No.251 of 2011, whereas no such objection was raised by the Prosecutor-General Sindh at any stage. Similarly, office has also not raised any objection in this regard, whereas regularly bails are being fixed before Single Bench of this Court as per Roster. This is for the first time that such objection has been raised by the prosecution, which is hereby responded as under.
9. The applicant/accused has filed instant bail application on being aggrieved and dissatisfied by the order passed by the learned Presiding Officer in bail application whereby bail application of the applicant/accused was rejected on merits. From perusal of the provisions of the said Act, it appears that except bar of jurisdiction under section 11, excluding the jurisdiction of Civil Courts to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act; there is no prohibitory clause in the said Act, which ousts the jurisdiction of the High Court either for the purposes of grant of bail or otherwise. On the contrary, in terms of section 27, an appeal before the High Court has been provided against the order passed by a Special Court. It is pertinent to mention that in section 27 of the said Act, the legislature has not used the word "before a Division Bench" or "a bench of not less two Judges of that Court", which reflects upon the intention of the legislature to mean that any proceeding arising out of an order passed under the provisions of the said Act, can be assailed by filing an appeal under section 27 or through appropriate proceedings before the Single Bench of this Court, including bail application.
10. While comparing the provision of the said Act with the provision of other Special Laws including Control of Narcotic Substances Act, 1997, Anti-Terrorism Act, 1997 and National Accountability Bureau Act, 1999, it may be observed that in term of section 51 of the CNS Act, grant of bail has been prohibited specifically. Section 51 reads as follows:--
"51. No bail to be granted in respect of certain offences.---(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
Similarly, in terms of section 48 of CNS Act, an appeal is provided which is to be heard by a bench of not less than two Judges. Section 48 reads as under:--
"48. Appeal.---(1) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a bench of not less than two Judges of that Court.
(2) An appeal against the order of a Special Court comprising a Judicial Magistrate shall lie to a Special Court comprising a Sessions Judge or an Additional Sessions Judge."
11. From perusal of section 51 of CNS Act, it appears that even the bar provided under this section is not absolute, and in a appropriate cases, bail can be granted, whereas from perusal of section 48, it emerges that an appeal shall not be heard by a bench of not less than two Judges of this Court. However, in spite of above provisions, the bail applications arising from the CNS Act, are heard by a Single Judge of this Court. It is pertinent to mention that a Division Bench of this Court vide its order dated 21-6-2007 in Criminal Bail Application No.660 of 2007, while confronted with similar objection, has held that only appeals and not bail applications are required to be heard by a Division Bench of this Court. Thereafter vide Notification No. GAZ/XII-Z-23 (H.C) dated 6-9-2007 while exercising powers conferred by Rule 3 of the Rules contained in Chapter 4-J, High Court Rules and Orders Volume-VII, the Hon'ble Chief Justice has notified that all the Bail Applications under section 498, Cr.P.C. read with section 48 of Control of Narcotic Substances Act, 1997 shall now be heard by a Single Bench of this Court instead of Division Bench.
12. In the case of Anti-Terrorism Act, 1997, provision of bail has been regulated in terms of section 21-D, wherein Anti-Terrorism Court, High Court and Supreme Court of Pakistan have been given the jurisdiction to grant of bail, whereas in terms of section 25, an appeal against the final judgment of the Anti-Terrorism Court has been provided in the High Court. It is pertinent to mention that there is no prohibition/restriction in this Act, which provides that the appeal under this Act shall be heard by a Division Bench of this Court. Accordingly, appeal as well as bail applications under this Act are heard and disposed of by the learned Single Bench of this Court.
13. In the case of NAB Ordinance, 1999, it appears that no provision, which regulate, the grant of bail or otherwise, has been provided whereas provision of appeal has been provided in terms of section 32 which reads as follows:
"32. Appeal [and revision]
(a) Any person convicted or the Prosecutor-General Accountability, if so directed by the Chairman NAB, aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court prefer an Appeal to the High Court of the Province where the Court is situated:
Provided that no appeal shall lie against any interlocutory order of the Court;
(b) All Appeals against the final judgment filed before the High Court will be heard by a Bench of not less than two Judges constituted by the Chief Justice of the High Court and shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any interlocutory order of the Court."
14. From the perusal of the above provision, it appears that appeal has been provided against final judgment and order of the Court under this Ordinance, which is to be heard by a bench of not less than two Judges, constituted by the Chief Justice of High Court, whereas no revision is provided against any interlocutory order of the Court. Accordingly, in the cases of NAB, bail applications are entertained under Article 199 of the Constitution of Pakistan by this Court. It is pertinent to note that in terms of section 76 of the CNS Act, 1997 overriding effect has been given to the provision of the Act over any other law for the time being enforced. In terms of section 32 of Anti-Terrorism Act, 1997 overriding effect to the act, over any other law for the time being enforced has been given. Similarly, whereas in terms of section 3 of the NAB Ordinance, overriding effect to the provision of the Ordinance over any other law for the time being enforced has been given, whereas there is no such provision in the Sindh Public Property (Removal of Encroachment) Act, 2010 giving overriding effect to the provision of the said Act over any other law.
15. In the reported case of Haji Ghulam Ali v. The State through A.G. and N.-W.F.P., Peshawar and another 2003 SD 862, Full Bench of Supreme Court of Pakistan while placing the reliance in the case of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607) has held as under:--
"We may point out that the use of word "notwithstanding" in the said section would still exclude the applicability of section 497, Cr.P.C. in the cases under NAB Ordinance, 1999. However, as held in the above-said judgment, the power of High Court for grant of bail in writ jurisdiction would be available and an accused of an offence under NAB Ordinance, 1999 is at liberty to take any ground for grant of bail on the basis of which bail can be granted under section 497, Cr.P.C. The conclusion is that even after amendment in section 9(b) of NAB Ordinance 1999, the legal position regarding the maintainability of a bail application under section 497, Cr.P.C. in a case under the said Ordinance was not changed."
16. In the case of F. Brummel and 3 others v. The State PLD 1986 Karachi 390, a Division Bench of this Court while examining the powers under section 561-A, Cr.P.C. vested in a High Court with particular reference to provision of Drugs Act, 1976 has held as under:--
"Secondly adverting to sec-tion 561-A, Cr.P.C. which is inherent jurisdiction of the High Court, it can be said that exercise of that jurisdiction is not expressly barred under the provisions of Drugs Act, 1976 as such the same is still open to the High Court."
17. After having examined the provisions of the Sindh Public Property (Removal of Encroachment) Act, 2010 and other Special Laws mentioned hereinabove and the case-laws referred to and relied upon by the parties, I am of the humble view that the instant bail application arising out of an order dated 20-4-2011 passed by the learned Presiding Officer, who is below the rank of Sessions Judge, of the Special Court Sindh Public Property (Removal of Encroachment) Karachi, in Criminal Bail Application No.20 of 2011, dismissing the bail application of the applicant, which was placed before the Hon'ble Chief Justice on 31st March, 2011, who was pleased to order "let it be put before SB (AS) 2", can be legally entertained by a Single Bench of this Court for disposal on merits by treating the same under section 27 of the Sindh Public Property (Removal of Encroachment) Act, 2010 read with section 497, Cr.P.C, whereas by exercising inherent powers under section 561-A, Cr.P.C. the order of release can also be passed by this Court to meet ends of justice, more particularly when there is no separate procedure provided for such purpose, whereas there is no specific bar for the grant of bail or to entertain an appeal against an order passed under the Sindh Public Property (Removal of Encroachment) Act, 2010. Accordingly, the objection raised by the learned A.P.-G. under the facts and circumstances of the instant case is misconceived and is hereby rejected.
18. Adverting to the merits of the case for the purposes of grant of instant bail application or otherwise, my response is that from tentative assessment of available record, it appears that the name of the present applicant has not been mentioned in the F.I.R. nor any role has been assigned to the applicant/accused, whereas no incriminating material has been recovered from him nor the same has been produced by the prosecution. There is no independent witness of the alleged offence. It has come on record, and was also observed by the learned trial Court while refusing bail application of the applicant that the applicant was arrested under mistaken identity of Samiullah Jang. It has also come on record that already there is civil litigation pending in respect of subject land, which was allotted and leased out several years back, survey was conducted on a number of times by the Government officials according to which the area occupied by the accused nominated is less than the area which was leased out to them. The allegations contained in the F.I.R. are vague, whereas no specific allegation of encroachment appears to have been raised by the complainant. On the contrary, some alleged violation of the terms of allotment/lease has been highlighted. Under the circumstances, application of provision of section 8 of the Sindh Public Property (Removal of Encroachment) Act, 2010 appears to be doubtful.
19. In view of hereinabove, prosecution story cannot be treated free from doubt and the matter requires further inquiry, whereas minimum punishment provided under section 8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010 is one year. In the reported case of Shehzore and another v. The State 2006 YLR 3167, the learned Judge of this Court now elevated to the Apex Court while granting bail in a case registered under section 395, P.P.C. has held that under provisions of section 395, P.P.C. alternate punishment i.e. imprisonment for life or imprisonment not less than four years and more than 10 years having been provided, lesser sentence should be considered by the Court in the matter of bail. It is settled principle of law that bail cannot be withheld as punishment, whereas grant of bail in bailable offences is a rule and refusal is exception. Similarly, law is not to be stretched in favour of prosecution. Reliance in this regard can be placed on the recent judgment of Hon'ble Supreme Court in the case of Abid Ali alias Ali v. The State 2011 SCMR 161
20. Under the circumstances, respectfully following the dicta laid down in the above cited judgments, I am of the view that the applicant/accused has made out a case for grant of bail. The applicant/accused is admitted to bail on furnishing surety in the sum of Rs.2,00,000 (Rupees Two Lacs Only) with P.R. bond in the like amount to the satisfaction of the learned trial Court.
21. Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law on the basis of evidence on record.
22. However, it is clarified that if, the applicant/accused misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant/accused as per law.
H.B.T./A-127/K Bail granted.