' Originally'the learned counsel for respondent in the main suo . Motu petition is Mr. Muhammad Inayat Ullah Cheema, Advocate while Ch. Abdul Sattar, Advocate has filed this C.M. Petition. He submits that in fact mother of learned counsel for respondent has died, so he could not appear, that simultaneous applications, one before this Court and the other before the learned Addl.
Sessions Judge, which is pending and either the complainant's counsel should withdraw his application from the Court of learned Addl. Sessions Judge or should argue his case here or otherwise.
' I have heard learned counsel for the petitioner, who has filed this C.M. Petition. This C.M. Petition is dismissed and I order the learned original counsel to argue this case on behilf of the respondent.
As far as, application for cancellation of bail before the learned Addl. Sessions Judge is concerned, as the petition for cancellation of bail is not being decided by learned Addl. Sessions Judge on the ground that learned counsel for respondent is not appearing before the Court that his mother had died and he was busy in "Rasm-i-Daswann so I while using my suo motu powers now will proceed with this case.
' MAIN CASE ' Inayat Ullah Cheema for Respondent. Malik Shaukat Ali Awan for the Complainant. Naeem Ullah Lodhi for the State. Muhammad Sarwar S.-I. With record.
' In the instant case, Muhammad Saeed Akhtar alongwith one Sultan Ahmad Bhinder filed application for bail before arrest bearing Crl. Misc. No,6706/B of 2003, which came up for hearing before this Court on 12-11-2003 and in which it was contended by learned counsel for the petitioners that main beneficiary had been allowed bail by learned Addl. Sessions Judge while the petitioners were only alleged as attesting witnesses, at that time while granting interim bail before arrest to those petitioners I issued suo motu notice to the present respondent with the further direction to the office to prepare a separate file and matter was adjourned for 24-11-2003. On the said date, according to the office report, petitioners in the said petition did not file bail bonds and learned counsel for the petitioners also submitted that they have been arrested so he wanted to withdraw that application and the same was dismissed but present respondent was not present although I had ordered him to appear before this Court, separate file was prepared, matter came up for hearing on 24-11-2003 in Crl. Misc. No,7125/CB of 2003, Sarwar S.-I. Was present, he was directed to get the service effected on the present respondent and to produce him before this Court on 5-12-2003 but on 5-12-2003 learned counsel for respondent Mr. Muhammad Inayat Ullah Cheema, Advocate submitted before this Court that an application for cancellation of bail has also been moved by the complainant before the learned Addl. Sessions Judge and is fixed for 6-12- 2003, so I directed the respondent to produce his counsel before learned Addl. Sessions Judge and the learned Addl. Sessions Judge would decide the matter without being prejudiced by the order passed by this Court with the further direction to Muhammad Sarwar, S.-I. To produce complainant of the F.I.R. Before this Court on 11-12-2003 but on 11-12-2003 it was submitted before me that learned counsel for respondent did not appear before the learned Addl. Sessions Judge on 6-12- 2003, so this application was adjourned for today i,e, 22-12-2003. Today, it has been stated before me that mother of learned counsel for respondent has died so he did not appear before the learned Addl. Sessions Judge on the last date of hearing. While passing a separate order and giving reasons I have decided to hear this matter because it is pending for the last more than one month. Moreover, learned counsel for the complainant has submitted an application before me in which the same learned counsel has appeared before another learned Addl. Sessions Judge on 20-11-2003 on the application filed by the present respondent.
' Learned counsel for the respondent submits that respondent has not misused the concession of bail that sections 468 and 471, P.P.C. Are bailable and non-cognizable while section 420, P.P.C. Is bailable. Further submits that report of Handwriting Expert on the file is a manoeuvred one and the respondent has submitted an application for reexamination of the sale agreement with the thumb/signatures of the deceased father of the complainant alongwith his National Identity Card or his other documents, that there is stay order granted by the Civil Court in favor of the present respondent, that suit for specific performance was filed and thereafter, the instant F.I.R. Was registered against the present respondent and other, that there is a clear violation of section 195, Cr.P.C:, that police cannot investigate this case, that no case is made out and the bail granting order be maintained.
' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that alongwith sections 468, 471, 420, P.P.C. There is section 419, P.P.C. Which is non- cognizable and non-bailable, that report of Handwriting Expert is in favor of the prosecution because when the respondent was allowed bail before arrest he was directed to produce the original sale agreement, which was produced, thereafter, the said sale agreement, original registry in the name of father of the complainant and register of stamp vendor were sent to Handwriting Expert and it was found that disputed sale agreement was not genuine one, that before investigating the case the police had taken the permission from learned Illaqa Magistrate and that stay granted to the respondent was cancelled by the Civil Court but at this stage, learned counsel for the respondent had produced a copy of notice issued by Mr. Muhammad Feroze Khan, learned Addl. Sessions Judge stating therein that the stay which was cancelled had been restored in favor of the present respondent. Learned counsel for the complainant further submits that respondent had also misused the concession of bail and two F.I.Rs. Nos.284 and 285 of 2003 have been registered against him in P.S. Civil Line,, Gujranwala and he has been declared P.O. In those cases.
He further submits that possession of the land in dispute is with the complainant party, that Khasra G.Irdawaries are also in the name of complainant party and that when this forged sale-agreement was prepared the father of the complainant had already died.
' I have heard learned counsel for the parties. One should keep in mind, considerations for the grant of bail before arrest and after arrest are totally different. A man can tell a lie but the documents not. Original sale agreement, stamp vendor register and the National Identity Card of A the deceased were sent to Handwriting Expert and according to the report of Handwriting Expert there was no thumb-impressions of the deceased father of the complainant on the said sale agreement against whom it has been alleged that he had made a sale agreement with the present respondent. Learned counsel for the complainant while arguing the case has also produced before me an agreement between Ashiq Pervez and Muhammad Farooq who was tenant of the deceased in which the present respondent is a marginal witness. The said land which is in fact 67 acres that was given on lease to Ashiq Pervez and this agreement took place on 1-6-2000 while the disputed sale agreement is dated 6-6-2000, I am unable to understand that how within five days the deceased agreed to sell this land to the present respondent. Unfortunately, these types of incidents are on its peak and those should be curbed with iron hand.
' After having heard learned counsel for the parties, I am inclined to cancel the bail of the present respondent, so this suo mow petition is accepted and the bail granting order passed by learned Addl. Sessions Judge, in favor of the present respondent is hereby recalled.
Bail cancelled.
2004 P Cr, J 1614 [Karachi] Before Syed Zawwar Hussain Jaffery, WAZIR ALI and others----Applicants versus THE STATE---Respondent Criminal Bail Application No,S-498 of 2003, decided on 3rd November, 2003.
Criminal Procedure Code (V of 1898)--- ----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), (ii), 337-F(1), 504, 114, 147 & 148---Pre-arrest bail, grant of---F.I.R., alleged that accused had caused Lathi blows to complainant, but it was not stated that who caused which injury to the complainant---One of accused persons had lodged F.I.R.
Against complainant party for attempting to commit sodomy---Reasonable grounds existed for grant of pre-arrest bail as prosecution was motivated to involve accused in the case---Accused persons having made out a case for grant of pre-arrest bail, they were admitted to pre-arrest bail, in circumstances. 1p. 1616] A - Jai Jai Veshno Mange Ram for Applicants. Muhammad Ismail Bhutto for the State. Date of hearing: 3rd November, 2003.
' Through this application, the applicants/accused have prayed that they may be admitted on bail before arrest in Crime No,66 of 2001 of P.S. Sultan Kot for an offence under sections 337-A(i), (ii), 337-F(i), 147, 148, 114 and 504, P.P.C.
2. The F.I.R. Of the said crime was registered on 25-8-2001 at the complaint of Hakim Ali at Police Station Sultan Kot, District Shikarpur. The applicants/accused preferred bail application in the Court of Ivth Additional Sessions Judge, Shikarpur on 3-9-2001 and on the said day the said Court granted interim bail before arrest subject to furnishing solvent surety in the sum of Rs 30,000 each and P.R. Bond in the like amount, The applicants/accused remained on interim bail up to 30=9=2003, as the bail of co-accused Haji Rab Dino alias Raban was confirmed whereas the bail application of the applicants/accused was dismissed by an impugned order, dated 30-9-2003.
3. It is, inter alia contended that on 16=8=2001 prior to the lodging of the Crime No,66 of 2001 victim Sanaullah being applicant at S.No,2 lodged an F.I.R. Of Crime No,60 of 2001 under section 18 Offence of Zina Hudood Ordinance read with section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and applicant Wazir Ali is the prosecution witness and applicant Sanaullah is the complainant in that case whereas applicant Shahmir has acted as Mashir of Vardat and co-applicant Abdul Khair is cousin of complainant. It is further contended that there are general allegations that accused had caused Lathi blows to the complainant and no specific role against each of the accused is described in the F.I.R. The present F.I.R. Has been lodged malafidely with ulterior motive to cow down to enter into Faisala and present case is out shoot of Crime No,60 of 2001. As per medical certificate complainant Hakim Ali has sustained seven injuries and only one injury on his head which has not been mentioned in the and the ocular evidence is in conflict with the medical evidence. Mr. Jai Jai Veshno Mange Ram, learned counsel for the applicants in support of his arguments, has relied upon the case of Master Dur Muhammad v. State 1994 PCr.LJ 1769 and submits that due to previous enmity the F.I.R. Against the applicants/accused had been registered and all the family members have been joined as an accused in the F.I.R. And the police party is trying for their arrest and the applicants/accused will be subjected to humiliation at the hands of concerned police personnel with their mala fide intention and undue harassm ent be extended.
4. Mr. Muhammad Ismail Bhutto, learned counsel appearing on behalf of the State has conceded that F.I.R. Crime No,60 of 2001 was registered at the same police station and the complainant party try to outrange modesty of such hue and cry and witnesses namely Gulshan, Muhammad Hashim and Wazir Ali has cited as witnesses in the case whereas applicant Shahmir has acted as Mashir of Vardat and Abul Khair is related. He has not opposed the grant of bail before arrest to the applicant/accused, as the injuries sustained by the complainant party have not been attributed specifically to any of the applicants.
5. I have heard learned counsel for the respective parties and examined the documents placed on record and the case-law cited at the Bar.
6. Admittedly as per F.I.R. It is alleged that applicants/accused have caused Lathi blows to the complainant, but it is not alleged that who caused which injury to the complainant. Applicant Sanaullah is one of the accused in the present case, who had lodged F.I.R. Against the complainant party on 16-8-2001 for attempting to commit sodomy. There are reasonable grounds for grant of pre-arrest bail, as the prosecution is motivated to involve the applicants/accused in the present case. The Crime No,66 of 2001 was disposed of as cancelled class and their bail was dismissed by the trial Court on 12-3-2002 and up to this time final report has not been filed in the Court having jurisdiction and they sought interim pre-arrest bail from the learned IVth Additional Sessions Judge, Shikarpur on 3-9-2001 and they remained on bail for sufficient long time. The applicants/accused have made out a case for interference for grant of pre-arrest bail.
7. Resultantly, pre-arrest bail is granted subject to furnishing solvent surety in the sum of Rs.50,000 each and P.R. Bond in the like amount, to the satisfaction of Additional Registrar of this Court. The applicants/accused are directed to appear before the I.O. Or before the trial Court as and when directed.
' The Criminal. Bail Application No,498 of 2003 stands disposed of.
Pre-arrest .