' At the very outset, Mr. Shaukat Rafique Bajwa, Advocate, who had filed this petition on behalf of both the petitioners wants to withdraw his power of attorney on behalf of Shaujja-ud-Din petitioner No.1 and the same is allowed while Mr. Naveed Ashfaq Rana, Advocate has filed his power of attorney on behalf of Shujja-ud-Din petitioner No.l.
2. Both the learned counsel for the petitioners submit that petitioners have been falsely implicated in this case, that complainant was never their tenant at any stage, that on the same facts two F.I.Rs.
Have been lodged, that there is an inordinate delay in lodging the F.I.R., that in. The earlier F.I.R.
No.30 which was lodged on 27-2-2004 petitioners were allowed bail before arrest by learned Additional Sessions Judge while in the second F.I.R. No.53 which was lodged on 7-4-2004 the same learned Additional Sessions Judge did not confirm the bail before arrest of the present petitioners.
They further submit that complainant failed to produce any document to show that he was tenant or was in the possession of the property in dispute. Further submit that Shujja-ud-Din who is owner of the property along with his other family members had sold the said property to one Asif Mehmood and that agreement took place on 10-10-2003 while said Asif Mehmood also filed Civil Suit on 7-2-2004 against Shujjaud-Din and others but in that suit Amanat Ali complainant was not a respondent. Both the learned counsel further submit the Civil Suit filed by Amanat Ali complainant of the instant F.I.Rs. Is dated 1-11-2003 in which reply was filed by the present petitioners on 9-2-2004 and in that reply it was categorically stated that possession of the said property was not with Amanat Ali complainant. They further submits that counsel of Shujja-ud-Din in that Civil Suit had connived with Amanat Ali complainant and wrongly stated in an application for temporary injunction that Shujja-ud-Din will not dispossess Amanat Ali illegally and forcibly, that in this regard, an application was also submitted to Punjab Bar Council against the said lawyer, that in the Civil Suit filed by Asif Mehmood the learned Civil Judge had appointed a Local Commission, who came at the spot, recorded the statements of the witnesses, submitted his report and the reasons for false implication of Shshzad Akram petitioner No.2 is that he appeared before the said Local Commissioner as P.W. Further submits that no case under section 452, P.P.C. Is made out against the petitioner while sections 148/149, P.P.C. Have been deleted by the I.O. On the direction of A.S.P., namely, Jehan Zaib, that petitioner No.2 has no reasons to join hands with petitioner No.1 in the instant occurrence. They both further submit that only section 448, P.P.C. Is there, which is bailable. Further submits that there was also allegation against the petitioners that complainant was given beating by the accused party but no medical examination of the complainant took place, that petitioners have joined the investigation and that their case is of further inquiry falling under subsection (2) of section 497, Cr.P.C. Mr. Shaukat Rafique Bajwa, Advocate has relied upon 2004 PCr.LJ 277 and 308, 1985 SCM R 1949, PLD 1995 SC 34 and 2003 YLR 545.
3. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioners are named in the F.I.R., specific roles are attributed to them, that as two occurrences have taken place, so two different F.I.Rs. Were lodged, that complainant had been roaming from one pillar to other pillar but the police did not pay any heed to his request and no case was registered and ultimately, complainant submitted two different applications before the learned Sessions Judge and on his order, these cases were registered against the petitioners, that there is no mala fide and ulterior motive on the part of the complainant to falsely implicate the present petitioners. Learned counsel for the complainant submits that complainant had filed civil suit before the Civil Court against Shujja-ud-Din apprehending illegal and forcibly dispossession of the disputed property from his hand on 1-11-2003 while the civil suit filed by Asif Mehmood mentioned above is dated 7-2-2004. He submits that in his civil suit complainant has also filed electricity bill, sui gas bill and WASA bill. He has also produced a notice issued by Excise Department showing the complainant as tenant under Alauddin and Ehsan Ullah. They further submit that considerations for the grant of bail before arrest and after arrest are totally different and it is not a case of bail before arrest. Lastly, submit that the A.S.P. And Riaz Ahmad, S.-I. Have found the petitioners guilty.
4. I have heard learned counsel for the parties. In the instant case it has not been denied that two F.I.Rs. Have been lodged. It has been stated by learned counsel for the complainant that first occurrence took place when complainant was dispossessed forcibly from basement and a shop while second occurrence took place when he was dispossessed from first floor, second floor and from the roof of the disputed property. Certified copies of the orders of learned Sessions Judge being justice of peace has been placed on record, which shows that for the registration of above said F.I.Rs. Complainant has to approach the said justice of peace because police was not initiating or lodging any F.I.R. On the asking of complainant Amanat Ali. As far as, confirmation of bail in earlier case F.I.R. No.30 is concerned, complainant was not being represented therein, so the I.O. Made a statement that no occurrence had taken place and the petitioners are innocent, so their bail before arrest was confirmed by the learned Additional Sessions Judge. The reason for confirmation of first bail before arrest of the petitioners was that complainant viewpoint was not represented by anybody. In the second F.I.R., which is the instant case, complainant appeared along with his counsel and the same learned Additional Sessions Judge has given a detailed reasons for non-confirmation of bail before arrest application of the present petitioners. There is no mala fide or ulterior motive on the part of the complainant for lodging the above said F.I.Rs. Photostat copy produced by learned counsel for the complainant and issued by Excise Department shows and proves that complainant was tenant under Shujja-ud-Din and Ehsan Ullah. For the sake of arguments, if the complainant was not tenant under Shujja-ud-Din, then what was the necessity on the part of petitioner No.1 wherein, Shujja-ud-Din petitioner appeared, filed his written reply and in reply to the application for temporary injunction he had stated that he will not forcibly dispossess the complainant. This application was not only signed by his counsel but also by Shujja-ud-Din petitioner. As far as contention of learned counsel for the petitioner that in fact counsel of Shujja-ud-Din had connived with the complainant is concerned, that has no legs to stand for the reasons that application given by Shujja-ud-Din against the said counsel in Punjab Bar Council is dated 3-6-2004 i.e. After filing of bail before arrest application before this Court because interim bail was allowed to the petitioners on 28-5-2004. In my considered opinion, the said application was made against the said lawyer only to justify the stand of Shujja-ud-Din. So far as, sale agreement between Asif Mehmood and Shujja-ud-Din is concerned, till today no register sale-deed has taken place, even the civil suit filed by Asif Mehmood is dated 7-2-2004 i.e. After the first occurrence dated 31-1-2004 and in that civil suit Amanat Ali complainant . Was not a party.
From the perusal of said civil suit and the agreement to sell I am of the considered opinion that it was a collusive one between Shujja-ud-Din and Asif Mehmood. On 9-2-2004 on the one hand, Shujja-ud-Din makes an statement in writing before the Civil Judge that he will not dispossess the complainant Amanat Ali from the said property but on the other hand and on the same night he forcibly dispossessed Amanat Ali from the said disputed property. In the civil suit filed by Amanat Ali complainant dated 1-11-2003 Shujja-ud-Din petitioner No.1 filed his written reply on 9-2-2004 in which it was not mentioned by him that an agreement to sell between him and Asif Mehmood had 'taken place. Had this agreement to sell been there, then, the above said fact should have been mentioned in the reply filed by Shujja-ud-Din. I am unable to understand that how the first Investigating Officer came to the conclusion that section 452, P.P.C. Is not made out when specific allegation levelled in the F.I.R. Clearly shows that petitioners along with 4/5 unknown persons criminally trespassed into the premises of the complainant Amanat Ali which was with him, then there was no reasons for deletion of section 452, P.P.C. Which shows dishonesty and partiality on the part of local police. Even in the second F.I.R. Jahan Zaib, A.S.P. Has stated that sections A 148/149, P.P.C. Be deleted.. The said A.S.P. In the said case diary, which I have myself gone through very minutely, has given no reason whatsoever for deletion of sections 148/149, P.P.C., although in the F.I.R. It was clearly stated by the complainant that 4/5 persons criminally trespassed Into his premises. According to law, when more than 4 persons jointly commit an offence while armed with firearm, then section 148/149 comes into existence. I may also mention here that there was also a allegation against the petitioners that they had taken away forcibly rupees two lacs from the cash counter of the complainant but police also did not mention section 382, P.P.C. Till today and in this regard no reasons have been given. May be, after investigation, prosecution failed to prove that no case under section 382, P.P.C. Is made out, then, the same offence can be deleted. This also shows that from the very first day, police was in league with the accused persons and did not register the F.I.R. On the statement of the complainant. Having failed before the Police, complainant moved an application before Justice of Peace and thereafter, the F.I.R. Was recorded.
5. After having heard counsel" for the parties for about two hours and going through the documents placed on record by the both parties I am of the considered opinion, that petitioners along with their co-accused have taken the possession of the premises of complainant with the help of local police and such types of persons are not entitled to any relief till they restore the possession of the said disputed property to the complainant which they had taken illegally, forcibly and with the help of local police. In this view of the matter, prima facie a case under sections 382/448/452/ 148/149, P.P.C. Is made out against the petitioners, therefore, this petition is dismissed and interim bail already granted to the petitioners is hereby recalled.
6. It may be noted here, that recoveries are yet to be effected in this case from the present petitioners, therefore,. I direct learned Additional A.-G., who is present on Court's call to establish contact with A.I.-G./Legal or D.I.-G. Today and get the investigation of instant case transferred to a gazetted police officer not below the rank of S.P., so. That actual facts, may come on record and justice may be done with both the parties.
Bail .