BASHIR AHMED and 2 others vs THE STATE
This post-arrest bail application arose from FIR No. 30 of 2002 registered under Sections 420, 467, 468, and 471 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947 at Police Station Anti-Corruption Establishment, Sahiwal. The prosecution alleged that the petitioners, in collusion with the Patwari and Tehsildar, fraudulently transferred four Kanals of the complainant's land in their favour by presenting an impersonator. The core legal question was whether the petitioners were entitled to bail on the ground of further inquiry and the rule of consistency, especially where a co-accused revenue official had been exonerated by an affidavit from the complainant and granted bail. The Lahore High Court held that although the expert reported the disputed thumb-impressions were not the complainant's, the complainant's affidavit affirming the innocence of the co-accused Patwari rendered the petitioners' case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the bail petition was accepted subject to furnishing bail bonds.
- Whether the grant of bail to a co-accused revenue official based on a complainant's exonerating affidavit entitles private beneficiaries to bail under the rule of consistency?
- Whether an allegation of fraudulent land mutation constitutes a case of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when the complainant has sworn an affidavit absolving the involved Patwari?
- Can an adverse expert report regarding disputed thumb-impressions preclude post-arrest bail where the complainant's own conduct creates room for further inquiry?
- Section 420, Pakistan Penal Code 1860
- Section 467, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Bashir Ahmad, Nazir Ahmad and Muhammad Sharif, the petitioners have sought for after arrest bail in case F.I.R. No.30 of 2002, under sections 420/467/468/471, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 registered with Police Station, Anti-Corruption Establishment, Sahiwal.
2. The facts of the case were mentioned by me in the order dated 8-1-2003 recorded in Criminal Miscellaneous No. 3480-B of 2002 (titled Muhamniad Nawaz v. State) the same therefore, are not repeated here.
3. It has been contended on their behalf that they have falsely been roped in; that they are real nephews of the complainant and petitioner No.1 Bashir Ahmad, is his son-in-law and so it was not expected of them to have got transferred his land in their favour; that the complainant himself has sold his four Kanals of land to petitioner No.1 Bashir Ahmad and himself has got mutated the same in his favour and there was neither any fraud nor forgery committed by them in the same; that their co-accused Muhammad. Nawaz Patwari has been allowed bail by this Court and their case is identical to him and so as per rule of consistency they too are entitled to the same relief; and that they are behind the bars since 3-1-2003; that they are previous non-convicts.
4.On the other hand the learned counsel for the State has opposed the petition.
5. I have carefully considered the submissions made by the learned counsel for the parties.* with the help of available record.
6.The precise allegation against them is that they in collusion with Patwari and Tehsildar concerned have got transferred four Kanals land of the complainant in their favour by presenting another person in his place.
7.Their co-accused Muhammad Nawaz, Patwari has been allowed bail by this Court on 8-1-2003 in Criminal Miscellaneous No.3480-B of 2002 (titled Muhammad Nawaz v. State). The complainant Khan Muhammad had sworn affidavit in his favour that he is innocent. Their case seems identical to him as it was he (Muhammad Nawaz, Patwari) who had entered the mutation in their names and it was sanctioned by the Tehsildar.
6. The learned /State counsel has submitted that thumb-impressions of the complainant were sent to the Expert for comparison and he had reported that thumb-impressions on mutation were not of him.
7. Anyhow, in view of that affidavit of the complainant that the said Patwari is innocent, their case too has become one of further inquiry into their guilt. The same therefore, is covered under subsection (2) of section 497, Cr.P.C. They are also entitled to the same relief. They are behind the bars for the last more than two months and stated to be previous non-convicts.
8. In these circumstances, I find them entitled to bail. The petition,therefore, is accepted and they are admitted to bail provided they furnish bail bonds in the sum of Rs. 1,00,000 (Rupees'one lac) each' with one surety each in the like amount to the satisfaction of the learned Special Judge/Trial Court.