NAEEM MALIK Versus State

ORDER

MRS. KAUSAR SULTANA HUSSAIN, J.--- On dismissal of Bail Before Arrest Applications Nos. 923 of 2017, 935 of 2017 and 937 of 2017, by the trial Court, vide order dated 26.9.2017, the applicants Syed Iftikhar Haider Rizvi, Naeem Malik, Muhammad Simbid and Mazhar Iqbal have approached this Court, by filing instant Bail Before Arrest Applications under section 498, Cr.P.C., for obtaining interim pre-arrest bail order in case crime No. 130 of 2016, under sections 420, 406, 506/34, P.P.C., registered at Police Station Samanabad, Karachi.

2. Succinct prosecution story as narrated in the FIR is that Maqsood Ahmed lodged the instant FIR No. 130 of 2017, stating therein that he is jobless and owner of House No. R-511, Block-18, Federal B Area, Karachi. The said house was in the name of his father. He contacted to Syed Iftikhar Haider Rizvi son of Syed Mumtaz Hussain Rizvi, Estate agent working in Block-12, Federal B Area, Karachi for transfer of the plot in his name. It is mentioned in the FIR that Syed Iftikhar Haider Rizvi stated that firstly heirship certificate is to be made and he dishonestly, fraudulently obtained his signatures on some blank papers in connivance with Muhammad Shahid son of Abdul Qayyum, Naeem Mailk son of Abdul Qadir and Mazhar, who is clerk in KDA Gulberg, in December, 2016. After sometime, he came to know that these persons sold out the above mentioned house of the complainant dishonestly and fraudulently in the sum of Rs. 1,11,00,000/-. They did not pay any amount to him. When he demanded the amount, the accused persons threatened to kill him, therefore, he approached to the Court of concerned obtained order for lodging FIR against the accused persons for taking legal action against them.

3. Learned counsel appearing on behalf of the applicants/accused Naeem Malik and Muhammad Shahid in Criminal Bail Application No.1516 of 2017 has argued that applicants/accused are innocent and law abiding citizens and they are not previously convicted or hardened desperate or dangerous criminal, on the contrary they have been falsely implicated in the present case, due to enmity with mala fide intention for ulterior motives to harass, humiliate and disgrace them in the society. He further argued that the sections 420 and 506, P.P.C. are bailable offences, while the section 406, P.P.C. is not attracted in this case against the appicants/accused, as the Civil Suit bearing No. 1783 of 2017 is pending before this Court between the complainant and the applicants/accused, therefore, the instant case requires for further inquiry. He has further argued that there is inordinate delay of about nine months in lodging the FIR without any plausible explanation, which created serious doubt in the prosecution story. It is pointed out by the learned counsel for the applicants/accused that they have purchased the said plot/house for total Sale consideration of Rs. 1,11,00,000/- when co-accused Syed Iftikhar Haider Rizvi being Estate agent contacted them and the present applicants/accused purchased the said plot/house after obtaining all formalities. According to the learned counsel for the applicants/accused that on 22.12.2016 the complainant placed his signature and thumb impression on sale agreement and joint declaration and pre-lease Transfer Form-I, of KDA and executed declaration in favour of the applicants/accused in presence of two witnesses and KDA officials after completion of all formalities transfer the said plot/house in their respective names. According to them they made said payment to co-accused Syed Iftikhar Haider Rizvi, who issued all receipts to the applicants/accused upon the instigation of the complainant, who handed over all original title documents of the said plot and peace full possession of the house to the applicants/accused. The learned counsel for the applicants/accused has further argued that the complainant has filed Criminal Petition under sections 3/4 read with section 7 of Illegal Dispossession Act, 2005 bearing No. 12 of 2017, which was disposed of by the learned Ist Additional Sessions Judge, Central Karachi. According to the learned counsel for the applicants/accused, complainant has also filed the Civil Suit bearing No. 145 of 2017 in the Court of IXth Senior Civil Judge, Central Karachi and the same was withdrawn by the complainant later on and then he filed another Civil Suit bearing No.1783 of 2017 before this Court, which is still pending for adjudication. At the last, learned counsel for the applicants/accused has prayed for confirmation of ad-interim pre-arrest order earlier granted in favour of the applicants/accused, vide order dated 29.09.2017.

4. Learned counsel appearing on behalf of applicant/accused Syed Iftikhar Haider Rizvi in Criminal Bail Application No. 1527 of 2017 has argued that the applicant/accused is innocent and there is no cogent piece of evidence available on record against him to connect him with the alleged offence. He has also pointed out the delay in lodging of FIR by the complainant. The learned counsel for the applicant/accused has admitted that the applicant/accused has purchased the plot/house, of the complainant against sale consideration of Rs. 80,00,000/- and later on the applicant/accused offered to the complainant that he will invest the sale consideration of the complainant in his profitable business and would pay Rs. 65,000/- per month against such amount, if invested by him in the business of the applicant/accused. The applicant/accused Syed Iftikhar Haider Rizvi then invested the said sale amount in his business for which he has paid profit to the complainant for two months but thereafter per applicant/accused Syed Iftikhar Haider Rizvi the complainant was not available to him, therefore, he could not pay further profit to the complainant. During arguments, the learned counsel for the applicant/accused on behalf of the applicant/accused offered the complainant that the applicant/accused is ready to return his amount of Rs. 80,00,000/- and profit of 12 months at the same rate of Rs. 65,000/- due against the said investment, he further stated that he will deduct the amount from the total due amount to the complainant, which he spent in completion of all formalities in the office of KDA by paying bribe to officials of KDA in order to obtain such missing papers, from the office of KDA, but the complainant who was also present in the Court initially ready to receive back his amount but he was not ready for deduction of bribe amount paid by the applicant/accused Syed Iftikhar Haider Rizvi and after further negotiations between the parties, the complainant demanded Rs. 1,11,00,000/-. After failure of compromise efforts the learned counsel for the applicant/accused argued the matter and prayed for confirmation of ad interim pre-arrest bail order granted in his favour of applicant/accused Syed Iftikhar Haider Rizvi by this Court, vide order dated 02.10.2017.

5. Learned counsel appearing on behalf of the applicant/accused Mazhar Iqbal in Criminal Bail Application No. 1905 of 2017 has argued that the applicant/accused is innocent and falsely been implicated in this case with mala fide intention and ulterior motives. The learned counsel for the applicant/accused has also pointed out the inordinate delay more than nine months in lodging of FIR. According to the learned counsel for the applicant/accused, being clerk in KDA office he adopted all the legal formalities and requirements for the transfer of the property of the complainant, for which the complainant his aunty and all the concerned parties appeared before the Director Land in his office and after adopting all the required formalities the transfer of the property has been made in the record of rights. According to him, the matter is purely of civil nature but the complainant initiated criminal proceedings against him including co-accused with mala fide intention. The learned counsel for the applicant/accused has pointed out that ad-interim pre-arrest order was earlier granted in his favour by this Court on 29-09.2017 passed in Criminal Bail Before Arrest Application No. 1515 of 2017, but on 07.12.2017, when the applicant/accused could not appear before this Court, due to his serious health condition, the said ad-interim pre-arrest order was re-called and later on 12.12.2017, the applicant/accused moved present Criminal Bail Before Arrest Application bearing No. 1905 on 2017 with the same prayer and this Court has granted ad interim pre-arrest bail on the same surety already furnished in Criminal Bail Before Arrest Application No. 1515 of 2017. He prayed for confirmation of ad interim pre-arrest bail order of the applicant/accused Mazhar Iqbal, granted on 12.12.2017.

6. Learned D.P.G. has opposed for confirmation of bail of all accused persons on the ground that they all were involved in this crime and in connivance with each other they committed fraud and cheating with the complainant. Learned D.P.G. has further opposed to confirm the ad-interim pre-arrest bail of the accused persons on the ground that admittedly, the applicant/accused Syed Iftikhar Haider Rizvi get the possession of the complainant plot/house without paying a single penny to him and fraudulently he kept the sale consideration of the complainant plot/house on the pretext of its investment in profitable business and paid monthly profit for two months and thereafter, he did not pay monthly profit to the complainant, due to which he suffered monitory loss. He further argued that due to fraud of the accused persons the complainant lost his plot/house and get nothing against the said sale consideration, hence the applicants/accused are not entitled for confirmation of ad interim pre-arrest bail in their favour respectively.

7. Learned counsel for the complainant has adopted the same arguments of the learned DPG and prayed for dismissal of the ad interim pre-arrest bail of the applicants/accused.

8. After hearing the arguments and perusal of the record and in the light of the arguments advanced by the learned counsel for the applicants/accused as well as learned DPG for the State and learned counsel for the complainant, I am of the very clear view that the applicants/accused Naeem Iqbal son of Malik Abdul Qadir, Muhammad Shahid son of Abdul Qayyoum have purchased the house in question from the property agent/co-accused Syed Iftikhar Haider Rizvi son of Syed Mumtaz Hussain Rizvi for which they claimed that they have adopted all legal formalities and paid Rs. 1,11,00,000/- to the co-accused Syed Iftikhar Haider Rizvi. The applicant/accused Syed Iftikhar Haider Rizvi did not deny this fact. On the other hand, the applicant/accused Mazhar Iqbal son of Muhammad Ayoub being clerk in KDA also claimed that he has adopted all legal formalities while transferring the complainant's property in record of rights. On the other hand applicant/accused Syed Iftikhar Haider Rizvi admitted the claim of the complainant that he purchased the plot/house of the complainant against sale consideration of Rs. 80,00,000/- and did not pay the said amount to the complainant and invested this amount in profitable business on payment of profit payable to the complainant on monthly basis at the rate of Rs. 65,000/- per month. He further admitted before the Court that he paid profit against the said investment of the complainant's amount for two months and thereafter, he could not pay the monthly profit to the complainant, as he was not available to him. It is also admitted position that applicant/accused Syed Iftikhar Haider Rizvi is ready to return the said amount to the complainant including balance of profit amount to the complainant, which proved that he has a prima facie case against him, therefore, I recall the order of ad-interim pre-arrest earlier granted to the applicant/accused Syed Iftikhar Haider Rizvi on 02.10.2017, passed in Criminal Bail Before Arrest Application No. 1527 of 2017 and confirm the ad-interim orders earlier granted to the applicants/accused Naeem Malik and Muhammad on 29.09.2017 passed in Criminal Bail Before Arrest Application No. 1516 of 2017 and applicant/accused Mazhar Iqbal on 12.12.2017 passed in Criminal Bail Before Arrest Application No.1905 of 2017.

It needs not to iterate that the observation made hereinabove is tentative in nature, shall not affect the merit of the case.

MQ/N-16/Sindh Order accordingly.