BASHIR AHMAD Versus HAIDER ALI CH

ORDER

KAZIM ALI MALIK, J.--- Haider Ali, respondent/accused, was allowed anticipatory bail by a learned Additional Sessions Judge, Lahore vide order dated 16-5-2008 in a case FIR. No.1078 of 2007 dated 17-12-2007 under sections 386/342, P.P.C. registered with Police Station, Satto Katla, Lahore. Bashir Ahmad, petitioner/complainant, sought cancellation of pre-arrest bail of the respondent with the plea that the learned Additional Sessions Judge allowed him extraordinary relief of pre-arrest bail arbitrarily against record. A show-cause notice was issued to Haider Ali, respondent, as to why the bail allowed to him by the learned Additional Sessions Judge might not be cancelled.

2. The prosecution case set up in the FIR, in brief, is that in response to an advertisement in newspaper the complainant approached the Marriage Bureau of Mst. Samina Bibi, commonly known as Mrs. Chaudhary and got registered the name of his daughter after payment of registration fee of Rs.2,000 with an understanding that she would arrange her marriage with some suitable person.

3. On 16-12-2007 the complainant reached the house of Mst. Samina Bibi, co-accused, in the evening in response to her telephonic call in order to discuss affairs touching proposed marriage of his daughter. In the meantime a person entered drawing room of the house, took out a pistol and reprimanded and threatened the complainant by saying as to why he was sitting with his wife Mrs. Chaudhary. The complainant unsuccessfully attempted to explain his position but the male accused, who was later on identified as Haider Ali, respondent, did not lose his anger and forced the complainant on gun point to pose himself with Mst. Samina (co-accused) when being photographed. Mst. Samina posed herself as Haider All directed. Thereafter, the accused persons confined the complainant in the house and demanded Rs.50,00,000 extending threats that in case of complainant's failure to pay the amount the above said photographs would be made public. Ultimately, the accused persons extorted Rs.6500 and cell phone from the complainant and allowed him to go at 10-30 p.m. The complainant alleged that being 65 years old father of a daughter he suffered mental shock and agony and could not reveal the occurrence promptly to the Police.

4. The learned counsel for petitioner/complainant has argued that the learned Additional Sessions Judge allowed anticipatory bail to the respondent without any basis and against the record. On the other, the learned counsel for respondent has supported the bail granting order with the plea that the complainant completely failed to substantiate the allegations with any evidence.

5. I have heard the learned counsel for parties and have gone through the record. The following reasons weighed with the learned Additional Sessions Judge while allowing anticipatory bail to Haider Ali, respondent:

(i) That a request of accused for change of investigation is pending before the Standing Board in terms of relevant provisions of Police Order, 2002.

(ii) The complainant was satisfied with the investigation conducted by the local police despite the fact that no evidence in support of the charge had been collected.

(iii) That there was no material on the file to show that Mrs. Chaudhary was running a marriage bureau.

(iv) That the respondent/accused is a staff driver of S&GAD Department Government of the Punjab.

(v) That the petitioner did not involve himself in objectionable activities in the past.

6. The counter/defence version, which the respondent/accused laid before the investigator and the learned Additional Sessions Judge during the course of arguments in his bail application was to the effect that Mst. Samina Bibi, co-accused, had borrowed Rs.1,00,000 from the respondent and he reached her house at the relevant time to get back the said amount, when she expressed her inability to pay back the loan as she was in financial crisis; that a person, namely Bashir/Shabbir was also present with the woman accused at that time to whom she had given Rs.2,00,000 on credit, which were to be returned to her (Mst. Samina Bibi) within three months; that he (respondent/accused) asked said Bashir or Shabbir to honour his commitment upon which he flew into rage and extended threats and that on 12-12-2007 he learnt that Mst. Samina Bibi had been arrested by Sato Katla Police Station and the respondent was also involved in the case. The above said counter version of the respondent/accused stands belied and rebutted by his own contentions set up in the bail applications which he made before the Court of Session. On 18-12-2007 Haider Ali, respondent, made an application for anticipatory bail in the above said case, certified Marked-A, wherein, one of the grounds for anticipatory bail was that in his absence the complainant was found doing immoral acts with his wife (Samina co-accused). In that application the respondent/accused was allowed interim pre-arrest bail till 3-1-2008 when it was dismissed for non-prosecution vide order dated 3-1-2008, certified copy Marked "B". On 3-1-2008 Haider Ali, respondent, made another application for pre-arrest bail, certified copy Marked "C", wherein he introduced himself as husband of co-accused Mrs. Chaudhary. The second petition was also dismissed in default vide order dated 16-1-2008, certified copy Marked-D. The respondent/accused moved third bail application for anticipatory bail on 22-1-2008, certified copy of which is Marked-D/1, on the same ground that the complainant was found in objectionable position with his wife Mrs. Chaudhary. However, at the time of arguments in the bail application the above said plea was not agitated and instead another story was put forward to the effect that the respondent, Haider Ali, reached the house of co-accused Samina to get back Rs.1,00,000 which she had borrowed from him and that he asked the complainant who was also present there to pay the amount due to her from him.

7. The learned counsel for respondent has not owned the earlier version which the respondent repeatedly agitated in his successive bail applications claiming that Mst. Samina Bibi alias Mrs. Chaudhary was his legally wedded wife and that he found the complainant doing immoral acts with her. The changed and reshaped version of the respondent/ accused qua his relationship with Mrs. Chaudhary, co-accused, itself, is evidence that they both blackmailed 65 years old complainant, who approached the woman accused in connection with proposed marriage of his daughter.

8. The local police concluded the investigation in favour of the complainant. On an application of the respondent/accused the case was reinvestigated by the D.S.P., who also endorsed the opinion formed by the local police with an observation that there was sufficient evidence to show that the accused persons committed the offence. I could not understand as to how the learned Additional Sessions Judge treated a simple request for change of investigation by the respondent as a valid ground for his anticipatory bail. The local police formed an opinion in favour of the complainant. The complainant was, therefore, satisfied with the result of investigation. In the opinion of learned Additional Sessions Judge the above said state of record was also a ground for pre-arrest bail. I am unable to agree with the learned Additional Sessions Judge, in whose opinion, result of investigation in favour of the complainant' to his satisfaction was a ground for pre-arrest bail of the accused.

10. The learned Additional Sessions Judge observed against the record that there was no evidence to show that Mrs. Chaudhary had been running a marriage bureau. It was not in dispute or disputable that Mrs. Chaudhary was Incharge of a marriage bureau. The woman accused admitted in her post arrest bail application, certified copy Marked-E, that she had been running marriage bureau. For facility of reference relevant lines of her bail petition are reproduced below:

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The request for post-arrest bail of Mst. Samina Bibi, co-accused was dismissed by the learned trial Court on 27-12-2007 with an observation that her husband and co-accused, Haider Ali, was at large. Certified copy of that order is Marked "F" the above discussed state of record has provided a basis to say that the learned Additional Sessions Judge made his observation touching the marriage bureau without examining the record.

11. The mere fact that the respondent/accused is an employee of Government of Punjab is no ground for pre-arrest bail. To my mind his official position has adversely affected his case and cause qua the request for pre-arrest bail. Being Government servant he was not supposed and expected to indulge in immoral and illegal activities as mentioned in the F.I.R. His alleged behavior was offensive of accepted and recognized standards of official discipline. This aspect of the case also escaped notice of the learned Additional Sessions Judge.

12. The complainant is 65 years old. He has made a specific and definite allegation to the above effect against the respondent/accused and Mrs. Chaudhary. There was/is no background of previous ill-will or enmity between the parties. Admittedly, Mrs. Chaudhary was running a marriage bureau at the relevant time and the complainant approached her seeking her services for marriage of his daughter. At one time the respondent/accused claimed that she was his wife and the complainant was found doing immoral acts with her. On re-consideration he changed his earlier stance and put forward another story to the effect that on the day of occurrence he reached the house of Mrs. Chaudhary to get back Rs. 1,00,000 which she had borrowed from him and that she was not his wife. The above state of affairs has provided a basis to conclude without any fear of contradiction that the learned Additional Sessions Judge allowed pre-arrest bail to the respondent/accused arbitrarily and against record. The respondent/accused completely failed before the learned Additional Sessions Judge to show that the allegation set up in the F.I.R was tainted with mala fide. Despite all this the learned Additional Sessions Judge granted extraordinary relief of anticipatory bail to the respondent and that too on whimsical grounds.

13. For what has been stated above I allow this petition under section 497(5), Cr.P.C. and consequently cancel the anticipatory bail granted to the respondent by the learned Additional Sessions Judge.

14. Before parting with this order it is made clear that the observations made in the preceding paragraphs being result of tentative assessment of the material would not adversely affect the case and cause of the accused persons at trial.

N.H.Q./B-19/L ??????????????????????????????????????????????????????????????????????????????????????????????? Bail cancelled.