Raja PERVAIZ AKHTAR vs THE STATE

' One Haji Muhammad Yaqoob son of Elahi Dad Khan submitted an application before the Deputy Commissioner Islamabad wherein he alleged that Ashraf Zameer accused through a fake power of attorney transferred the land of one Maula Dad, a relative of his wife, to Muhammad Bakhtiar. The application was sent to the Assistant Commissioner City, Islamabad for holding the preliminary inquiry who recorded the statements of the witnesses. During the inquiry it came to the notice of the Assistant Commissioner, City Islamabad that Raja Pervaiz Akhtar petitioner had appeared before the Sub-Registrar at the time of the registration of the power of attorney in favour of Ashraf Zameer who identified him. Holding the preliminary inquiry in favour of Haji Muhammad Yaqoob complainant the Assistant Commissioner City, Islamabad directed the S.H.O. Police Station Bharakahu District Islamabad for registration of a criminal case and, accordingly, F.I.R. No,184 dated 18-12-1998 stands registered at Police Station, Bharakahu District Islamabad under section 420/468/471 of Pakistan Penal Code. The Assistant Commissioner City, Islamabad also recommended for the forthwith cancellation of the mutation.

2. The law was set in motion by the police. Raja Pervaiz Akhtar petitioner has been arrested whose bail application has been dismissed by a learned Area Magistrate and the learned Additional Sessions Judge with the reasoning that he is prima facie connected with the occurrence and that he is not entitled to the discretion of the said Courts. He has filed this petition before this Court to try his luck to be admitted to bail.

3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. Even though this aspect has not been argued I would express that the preliminary inquiry was entrusted to the Assistant Commissioner City, Islamabad by the Deputy Commissioner, Islamabad and it was the duty of the Assistant Commissioner City, Islamabad to send the report to the Deputy Commissioner, Islamabad with the recommendations who could proceed in the matter in accordance with law. In short the haste has been shown by the Assistant Commissioner City for the reasons best known to him.

4. On merits learned counsel for the petitioner argued that section 420 of Pakistan Penal Code is bailable while both section 468/471, Pakistan Penal Code are non-cognizable and that keeping in view the said aspect the petitioner is entitled to the discretion of this Court as a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. He expressed that Raja Pervaiz Akhtar petitioner is not beneficiary of the matter. On the contrary learned State counsel laid the emphasis that the petitioner is named in the F.I.R. To whom specific role has been attributed and that having identified the principal accused before the Sub-Registrar he has lost the discretion of the Court.

5. I would express that the reasoning adopted by the learned counsel for Raja Pervaiz Akhtar petitioner-accused has to prevail. A bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. In a judgment printed as Ghulam Qasim alias Muhammad Qasim and another v. The State (1991 PCr.LJ 2418 Lahore) it has been expounded that the offences under section 468/471 of the Pakistan Penal Code being not cognizable and the police having not obtained any warrants or permission from the Area Magistrate to register or investigate the case under these sections and the offence under section 420, Pakistan Penal Code being bailable there was no alternative but to accept the bail application of the accused. Same view was expressed by me in Muhammad Azam v. The State 1995 M LD 1837. Another aspect which cannot be lost sight of is that with respect to the disputed property the civil litigation is already pending between the parties and I would express that civil Court has better footing for the determination of the dispute revolving around the alleged status In character of the parties qua the disputed property. Without prejudice I am tempted to express that the case seems to have been taken to the police to put the pressure upon the accused party which fact stands projected by the order of the Assistant Commissioner City, Islamabad who got registered the F.I.R. And passed the order for forthwith cancellation of the mutation.

6. The locus standi of Haji Muhammad Yacioob applicant to get initiated the inquiry is also a moot point and salient feature which shall have to be professed with during the investigation especially when the civil litigation is admitted to be pending with respect to the disputed property. As such the registration of the F.I.R. At the instance of the Assistant Commissioner City, Islamabad on the basis of the preliminary inquiry without the intervention of the Deputy Commissioner District Collector, Islamabad who could give his verdict on the report of the preliminary inquiry has stolen the eminence to make me hold that the involvement of Raja Pervaiz Akhtar, who appeared and identified before the Sub-Registrar at the time of the registration of the power of attorney, is a question of further inquiry. The reasoning mentioned by the learned State counsel that the name of Raja Pervaiz Akhtar stands entered in the F.I.R. Need not be given the legal weight in view of the aforesaid analysis of the matter at this initial stage while disposing of this bail application.

Consequently I hold that further detention of Raja Pervaiz Akhtar petitioner-accused would be punished without trial who is entitled to be admitted to bail then to be retained in jail.

7. I, therefore, accept this application and admit Raja Pervaiz Akhtar 'petitioner-accused to bail in the sum of Rs, 25,000 (Rupees twenty-five thousand only) with one surety in the like amount to the satisfaction of the Area/Duty Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.