AZIZ ABDUL RAHIM KASSAM ALI Versus State
ORDER
AMJAD ALI SAHITO, J.--- Through this Bail Application, the applicant/accused seeks post-arrest bail in Crime No.359/2019 registered under sections 5(2) of Act-II, PCA 1947 read with 419/420/468/471/109, P.P.C. at Police Station FIA AHT Circle, Karachi, after his bail plea has been declined by learned Judge, Special Court (Central-I), Karachi vide order dated 10.06.2020.
2. Brief facts of the prosecution case as alleged in the FIR are that an Enquiry No.168/2019 registered on receipt of a complaint from Tariq Islam, the aforesaid FIR was registered on 28.08.2019 at about 1605 hours. Precisely, the alleged complaint/FIR is about the falsification of NADRA record, during 2014-16 to usurp the property bearing Plot No.109, Sheet CF-5, Clifton, Karachi admeasuring 6430 sq. yds. owned by the complainant. Among the respective specific role attributed against the accused person, who issued false birth certificates for process and issuance of CNICs and subsequently fake CNICs were issued in the name of accused Nasreen Begum while malafidely changing her father's name as Muhammad Iqbal Chotani and mother's name as Naseem Begum Chotani. After enquiry, it was proved that the entire exercise was carried out by all accused in connivance with each other to commit fraud and usurp the above property, hence, FIR in question was registered.
3. Learned counsel for the applicant mainly contends that applicant is innocent and has falsely been implicated in this case; that the complainant Tariq Islam lodged a complaint to FIA against two persons namely Muhammad Iqbal and Nasreen Begum wife of Ghulam Mustafa Magsi; that the applicant is a private individual, who is not a public servant nor has any link with NADRA; that in April 2016 the applicant was approached by a relative namely Muhammad Feroz Ali to purchase the property in question i.e. Plot No. No.109, Sheet CF-5, Clifton, Karachi from Nasreen Begum, the main accused, and her father Muhammad Iqbal and they were claiming to be a lawful owner of the said property; that the main accused and deceased claimed that they needed the money and wanted to make a quick sale, they offered the applicant the chance to purchase the property at its official value of Rs.62,500,000/-; that the applicant believing this as a good deal and eventually agreed to purchase the same subject to seeing all reasonable legal documents; that the applicant entered into agreement dated 22.04.2016 with the main accused for her share and paid upfront amount of Rs.25,00,000/- by issuing pay order of Rs.15,00,000/- to Mr. Haji Muhammad Javaid, who was prospective previous purchase of the property but had decided against the same and wanted a sum of Rs.15,00,000/- as a part of earnest money; that the documents of title provided by the main accused to the applicant included KMC Letter, Search Certificate, FRC dated 28.10.2014, Death Certificates (showing her claim on the property through inheritance). Moreover, Letters of Administration were issued in favour of Muhammad Iqbal by this Court in SMA No.141/2016; that these documents led the accused to believe and would have led any reasonable person to so believe that the main accused and the deceased were the lawful owners of the property; that subsequently the applicant made further upfront payments after the Letters of Administration were issued to the first accused and the deceased amounting to a total of Rs.14,500,000/- for purchasing the property through various pay orders and cheque; that the applicant being a lawful taxpayer even declared this investment under the Voluntary Declaration of Domestic Assets Ordinance, 2018 and declared an investment of Rs.14,500,000/- out of a total of Rs.62,500,000/- which further clear that he was a bona fide purchaser for value without notice and was not involved in any criminal activity; that the main accused and her father then started looking around and decided they could get a higher price for the property; they tried to wriggle out of the deal with the applicant leading the applicant to file a suit for specific performance of the agreement before this Court. Further, learned counsel argued that neither the applicant is nominated in the FIR nor his name is placed in the interim charge sheet, however, I.O. falsely involved him in this case; that it was inadvertently mentioned in the pre-arrest bail order that SSP Muhammad Farooq Awan attested the image form of lady co-accused Mst. Nasreen but the actual position is that he attested the image form of Muhammad Iqbal; that the said SSP Muhammad Farooq Awan is not shown as a witness in the charge sheet, therefore, his evidence cannot be considered at this state; that no doubt the applicant purchased the property in question and paid the amount but he was bona fide purchaser, therefore, such civil litigation is pending between the parties before this Court in Civil Suit No.1752/2018 (Mst. Nasreen v. Messrs Business Vision (Pvt.) Ltd. and others) as well as Civil Suit No.2264/2017 (Aziz v. Muhammad Iqbal and others), therefore, in view of above situation, the title of property is yet to be decided by the trial Court, hence he submitted the case of applicant/accused required for further inquiry within the meaning of section 497(2), Cr.P.C.; that it was pointed out that there appears a delay of 4 years and 11 months in the registration of the FIR, therefore such practice was not appreciated by the Superior Court especially when prosecution failed to submit plausible explanation of such inordinate delay, therefore, such delay creates doubt regarding the genuineness of case; that prosecution case is based on documentary evidence, which are already in possession of I.O., therefore, there is no apprehension for tampering with the prosecution evidence and further that applicant/ accused remained on interim pre-arrest bail for six months but he never misused the concession; that the alleged offence did not fall within the prohibitory clause of section 497 Cr.P.C.; that investigation is almost completed as applicant/accused is remanded to jail custody, hence, his custody is no more required for further investigation. He lastly prays for grant of post-arrest bail. In support of his contentions, learned counsel for the applicant has relied upon the cases (1) 2011 SCMR 161 (Abid Ali v. State), (2) 2012 SCMR 1691 (Muhammad Abid v. State), (3) 1996 SCMR 1132 (Saeed Ahmed v. State), (4) PLD 2004 Karachi 617 (Amir Ahmad Hashmi v. State), (5) 1995 SCMR 387 (Sikandar A. Karim v. State), (6) PLD 1995 SC 34 (Tariq Bashir v. State), (7) PLD 2017 SC 733 (Mohammad Tanveer v. State), (8) 1995 SCMR 387 (Sikandar A. Karim v. State), (9) PLD 2003 SC 668 (Abdul Aziz Jgan Niazi v. State, (10) 2008 SCMR 173 (Muhammad Daud v. State), (11) 1995 PCr.LJ 1348 (Muhammad Yousuf v. State), (12) 2010 MLD 1251 (Abdul Qayoom v. State), (13) 2020 SCMR 434 (Khalid Mehmood v. State), (14) PLD 2003 Karachi 76 (Muhammad Naeem v. State), (15) PLD 2011 SC 171 (Ayad Ahmed Khan v. State), (16) 1995 SCMR 387 (Sikandar A. Karim v. State), (17) 2020 SCMR 971 (Muhammad Faisal v. State), (18) PLD 1972 SC 81 (Mansoor and 4 others v. State), (19) 2002 SCMR 282 (Muhammad Saeed Mehdi v. State), (20) 2011 SCMR 161 (Abid Ali v. State), (21) 2020 SCMR 956 (Mukaram v. State), (22) 2020 SCMR 971 (Muhammad Faisal v. State), (23) 1992 MLD 880 (Muhammad Aslam v. State), (24) PLD 1968 SC 281 (Muhammad Akbar v. State), (25) 1982 SCMR 988 (Abdul Haleem v. State), (26) 2017 YLR 288 (Muhammad Ashraf Khan v. Province of Sindh), (27) PLD 1962 Peshawar 167 (J.S. Daver v. Iqbal Qadir), (28) PLD 1963 Karachi 868 (R.C.P. Guignard v. State), (29) PLD 1963 Lahore 481 (Mahmood-ul-Hassan v. Imtiaz Khan), (30) 1972 PCr.LJ 1130 (Jamot Ghulam Muhammad v. State), (31) 1985 PCr.LJ 596 (Mazhar Hakeem v. State) and (32) PLD 1993 SC 399 (Badaruddin v. Mehr Ahmad Raza).
4. Learned counsel for the complainant as well as learned Assistant Attorney General for Pakistan duly assisted by I.O. have vehemently opposed for grant of bail to the applicant/accused that the applicant/accused have used the name of Muhammad Iqbal as the fake father of the lady before SSP Muhammad Farooq Awan for attestation, therefore, said SSP narrated such fact in his statement recorded by I.O. on 05.09.2019 and the basis of such statement, the applicant/accused was booked in this case; that the complainant and others have original indenture of lease dated 15.06.1955 executed by KMC with effect from April 1950 subsequently on 30.12.1958, Mr. Hashim son of Haji Noor Mohammad contracted to sell out the said property to Mst. Lady Khursheed Bhutto and Mst. Munawar Begum in lieu of consideration amount of Rs.325,000/- a Registered Sale deed dated 11.03.1959 was executed between the parties; that upon the death of Mst. Khursheed Bhutto, her share in the said plot devolved upon her legal heirs namely Mr. Zulfiqar Ali Bhutto, Begum Mumtaz Bhutto and Begum Munawar, mother of the complainant who was already a part of the owner of the said plot; that on 19.09.1962, Zulfikar Ali Bhutto also relinquished his share in the said plot and transferred the same to his sister Begum Munawar, mother of the complainant; hence the complainant is the sole owner of the said plot; that deceased Muhammad Iqbal approached to KMC and falsely claimed to the legal heirs of late Haji Noor Muhammad Moosabhoy Chotani and based on false claimed they are seeking to mutate Plot 109/1 in their favour; that on the further inquiry of the complainant, it transpired that similar applications were also made to the KMC in the past which exposes mala fides; that the accused Nasreen Begum also claimed alleged will of the deceased person i.e. N.M. Chotani; that subsequently through a publication, the complainant came to know that Muhammad Iqbal (deceased) was falsely claimed the owner of the plot belong to one N.M. Chotani; that through a legal counsel on 15.12.2017 appeared before this Court in SMA No.141/2016 and on the same date, the KMC also filed a statement wherein submitted a brief history of the subject plot in question; that the complainant also informed that by fraudulently misguiding this Court accused Nasreen Begum along with Muhammad Iqbal was able to obtain the order dated 16.06.2017 in the said SMA whereby judicial directions were issued for grant of letter of administration. In compliance thereof, letters of administration were granted on 07.10.2016; that the complainant filed various applications seeking revocation, suspension and annulment of the letters of administration dated 07.10.2016 granted vide order dated 16.06.2016 and recalled the said orders; that after hearing the parties, this Court vide order dated 18.12.2017, suspended the operation of the order dated 16.06.2017 and letters of administration dated 07.10.2017; that the bail of co-accused Ghulam Farooq Channa was already declined by the Court, however, he was only tool of applicant/ accused and facilitator but he is beneficiary and hatched conspiracy to usurp the property by using illegal means; that the applicant/accused in connivance with co-accused obtained a false and fabricated birth certificate in the name of Nasreen Begum showing her fake father's name as Muhammad Iqbal and mother's name as Naseem Begum Chotani; that I.O. made efforts and find out the details of fake accounts in the name of Nasreen Begum and Feroz, which speaks that an amount of Rs.3.5 million were credited in the bank account through cheque and pay orders from the bank account of Meezan Bank (Pvt.) Ltd. Tariq Road Branch, Karachi maintained by the applicant/ accused; that a cheque of Rs.5 lacs belongs to the applicant/accused; that since the applicant/accused is subsequently beneficiary of the property in question and yet final charge sheet is not submitted, that before this, the pre-arrest bail plea was filed before the learned trial Court, same was dismissed. In support of his contentions, learned counsel for the complainant has relied upon the cases (1) 2010 SCMR 1835 (Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others), (2) 2008 SCMR 839 (Seema Fareed and others v. The State and others), (3) 2017 SCMR 390 (Muhammad Aslam v. The State and others), (4) PLD 1968 SC 281 (Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan), (5) 2010 SCMR 1221 (Shahzad Ahmed v. The State through F.I.A. Islamabad), (6) 2015 SCMR 133 (The State/ANF v. Aleem Haider), (7) 2018 MLD 1142 (Israr Ahmed v. The State), (8) 2016 SCMR 18 (Zaigham Ashraf v. The State and others), (9) 2002 SCMR 1797 (Subhan Khan v. The State), (10) 2009 SCMR 1488 (Zafar Iqbal v. Muhammad Anwar and others), (11) 2019 MLD 169 (Muhammad Ilyas and others v. The State and others), (12) PLD 1995 SC 34 (Tariq Bashir and others v. The State), (13) PLD 1989 SC 585 (Muhammad Ismail v. Muhammad Rafique another), (14) PLD 1972 SC 81 (Manzoor and others v. The State), (15) 1969 SCMR 151 (The State v. Shah Sawar), (16) 1985 SCMR 1949 (Jamaluddin v. The State), (17) 2012 PCr.LJ 1 (Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi), (18) 2002 SCMR 1886 (Mst. Parveen Akhtar v. The State and others), (19) PLD 1988 SC 621 (Asmat Ullah Khan v. Bazi Khan and another), (20) 2011 SCMR 1606 (Muhammad Abbasi v. The State and another), (21) 1985 SCMR 195 (Arbab Ali v. Khamiso and others), (22) PLD 1994 SC 65 (Shahzaman and others v. The State and another), (23) PLD 1990 SC 83 (Mst. Bashiran Bibi v. Nisar Ahmad Khan and others), (24) 1985 SCMR 382 (Ibrahim v. Hayat Gul and others), (25) 1988 SCMR 1129 (The State v. Rashid Ahmad and another), (26) PLD 1985 SC 182 (Muhammad Sadiq v. Sadiq and others), (27) PLD 2018 SC 595 (Mst. Sughran Bibi v. The State), (28) 2019 SCMR 372 (Malik Din v. Chairman National Accountability Bureau), (29) 2017 SCMR 81 (Ghulam Rasool and others v. Noor Muhammad and others), (30) 2008 SCMR 510 (Commissioner of Income Tax/ Wealth Tax, Peshawar v. Haroon Bilour and others), (31) PLD 1972 SC 277 (Amir v. The State), (32) PLD 2020 SC 293 (Ghulam Farooq Channa v. Special Judge ACE (CENTRAL-I), (33) 2020 SCMR 956 (Mukaram v. The State and another) and (34) 2020 SCMR 1115 (Sami Ullah and another v. Laiq Zada and another).
5. I have heard the learned counsel for the parties and gone through the material available on record. It is an admitted position, the name of the applicant/accused does not find a place in the FIR nor any specific role has been assigned against him in the FIR. The case of the prosecution is that complainant Tariq Islam complained to FIA against three persons namely Muhammad Iqbal (deceased), Mst. Nasreen Begum wife of Ghulam Mustafa Magsi and Ghulam Farooq with the allegation that accused Nos.1, 2 and 3 tampered the record and obtained a CNIC card based on fake birth certificate issued by accused No.2 as they wanted to transfer ancestral property in their names. The interim challan, No.390/ 2019 dated 14.09.2019 was filed before the trial Court, but the name of the applicant was not included in the list of accused in the supplementary challan, however, in para-13 of the said challan; it was written that modification/addition of spouses name and CNIC number was attested by Muhammad Farooq Awan, SSP, but his name was not placed in the interim challan as an accused. After the belated stage, the statement of the said SSP was recorded and the present applicant was booked in this case. Furthermore, the I.O. of the case has failed to collect further evidence against the applicant to connect him with the alleged offence. In the case of Muhammad Abid v. The State (2012 SCMR 1691); wherein the Hon'ble Supreme Court of Pakistan has held as under:
"6 .The respondent Syed Hassan Haider Rizvi initially was neither nominated in the FIR nor his name has appeared as accused in the first challan submitted by FIA. In further investigation, he was transposed as accused. This by itself was a sufficient ground to grant bail to him as in such like situation, a case of further inquiry is made out."
6. In another case of Abid Ali alias Ali v. The State (2011 SCMR 161); wherein Hon'ble Supreme Court of Pakistan has granted bail to the petitioner on the ground that his name is not appearing in the FIR but his name was included in the list of accused in a supplementary statement.
"4 It is an admitted fact that name of the petitioner is not mentioned in the FIR but his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry, See Tahir Abbas v. The State (2003 SCMR 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is ubmitted should not be bar to refuse a right."
7. The next contention of the learned counsel for the complainant was that the applicant has hatched the conspiracy. In this regard the applicant claimed that one Faroze Ali approached to him to purchase the property in question at its official value of Rs.62,500,000.00 and the documents were provided by the main accused Nasreen including KMC Letters, lease, birth certificate, FRC dated 28.02.2014, death certificate, showing her claim on the property through inheritance. Moreover, letters of administration were issued in favour of Muhammad Iqbal by this Court in SMA No.141/2016 vide order dated 07.10.2016 and based on said documents, the applicant entered into the agreement and purchased the property in question through payments to the main accused and deceased, thereafter, the main accused and her father tried to linger on the deal with the applicant and the applicant has filed suit for specific performance of the agreement before this Court being Suit No.2264/2017. At the bail stage, only tentative assessment is to be made. It is yet to be determined at the trial whether the applicant/accused has hatched the conspiracy/ abetment or he is a bona fide purchaser of the said property when the evidence will be recorded/led before the learned trial Court, therefore, case of the applicant/accused fell under the category of further inquiry. The applicant is in jail, the case has been challenged, he is no more required for further investigation and his detention in the jail will not improve the case of the prosecution as the documents have already been collected by the prosecution. Reliance is placed in an unreported case of the Hon'ble Supreme Court of Pakistan in the case of Jahzeb Khan v. The State through A.G. KPK and others in Criminal Petition No.594/2020; wherein the Hon'ble Supreme Court has held that:
"4 Petitioner's continuous detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment. A case for petitioner's release on bail stands made out."
8. In view of the above facts and circumstances, learned counsel for the applicant/accused has succeeded to make out a case for further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, the instant bail application is allowed. Applicant/accused named above is enlarged on post-arrest bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lacs Only) and PR bond to the satisfaction of the learned trial Court.
9. The case-laws relied on learned counsel for the complainant is distinguishable from the facts and circumstances of the case.
10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant/accused on merits.
SA/A-153/Sindh Bail granted.