' Ch. Muhammad Ilyas Warriach, the petitioner, by filing the instant petition seeks his pre-arrest bail in case F.I.R. No,774, dated 29-7-2004, registered at Police Station Defence Area, Lahore, for offences under sections 420, 468, 471, P. P .0 .
2. The allegation against the petitioner as contained in the F.I.R. Registered at the instance of Major (Retd.). Syed Yousaf Hussain, Manager Security in Hasnain Cotex Ltd. Was that some time back the company had transferred its land through its Chief Executive, Muhammad Yousaf Sheikh to the Defence Housing Authority Lahore; that the Defence Housing Authority according to its rules had issued affidavits in the name of the company, which were fully owned by the company; it was brought to the notice of the company that some persons and Estate Agencies were trying to sell the said affidavits without permission of the company in an illegal manner; the said persons included the petitioner, Muhammad Ayub Sabir and Shahid Mahmood of Yasrab Estate Agency, Commercial Area Defence Housing Authority, Lahore; the said persons had been quoting some so- called verbal agreement allegedly between them and the company; that the said persons were in an illegal manner trying to defraud people and the agreement which was being referred to by them had neither been signed by the company nor by its Chairman and thus they were bringing a bad name to the company. Resultantly, the instant F.I.R. Had been recorded.
3. The petitioner and his two co-accused, namely, Muhammad Ayub Sabir and Shahid Mahmood applied for their pre-arrest bail for the first time after almost two and a half months of the registration of the case on 7-10-2004. The said bail application had been dismissed for non- prosecution on 15-10-2004. Thereafter, the petitioner and his co-accused again obtained ad interim pre-arrest bail on 18-10-2004, which too was dismissed for non-prosecution on 26-11-2004.
Now the petitioner has approached this Court by means of the instant application, which came up for hearing for the first time on 17-12-2004.
4. The learned counsel for the petitioner in support of the plea for pre-arrest bail argued that the petitioner and Messrs Hasnain Cotex Ltd. Have not entered into any agreement or contract; that in fact the co-accused, namely, Muhammad .Ayub Sabir and Shahid Mahmood had purchased some plots from the petitioner and the said two persons owed an amount of Rs, one crore, to the petitioner which payment they were trying to avoid; that in fact the petitioner is the victim of fraud committed by Muhammad Ayub Sabir and Shahid Mahmood and before the petitioner could take any action against them, the instant case had been registered; that sections 420, 468, 471, P.P.C.
Were not attracted to the facts and circumstances of the case. He argued that the petitioner had nothing to do with Muhammad Ayub Sabir and Shahid Mahmood co-accused and was being bracketed with them on account of malice and ulterior motive of the complainant as also the police with a view to humiliating and insulting the petitioner. He finally argued that the case of the petitioner was clearly one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. Entitling him to the concession of pre-arrest bail. He has relied on Muhammad Asim alias Bhola v. The State (2004 M LD 804), wherein pre-arrest bail was granted to the accused in a robbery case. This case has got no relevance to the case of the petitioner. His reliance on Shafqat and 4 others v. The State (2004 M LD 1415) is also misplaced as the said case is of simple theft under section 379, P.P.C., wherein recovery had been effected and the petitioner had been joining investigation. Likewise the reliance of the learned counsel on Malik Muhammad Ashraf v. The State (2004 PCr.LJ 277) also does not advance his case as the said case is again of simple theft and the accused had joined investigation. In the case of Muhammad Saleem v. The State (2004 PCr.LJ 1654), pre-arrest bail had been allowed to the accused as the allegedly stolen vehicle had already been recovered and he had joined investigation. This case also does not help the petitioner.
5. On the other hand, the learned counsel for the complainant and the learned counsel for the State have vehemently opposed the grant of bail to the petitioner They submitted that the petitioner and his co-accused Muhammad Ayub Sabir and Shahid Mahmood have in fact formed a gang, who are out to swindle and defraud people; that allegedly four fake agreements had been made, two between Muhammad Yousaf and Shahid Mahmood, one between Shahid Mahmood and Muhammad Ayub Sabir and one between Muhammad Ayub Sabir and Ch. Muhammad Ilyas Warriach, the present petitioner; that it was on the basis of the said fake agreements that the petitioner and his co-accused were trying to sell the property of the company; that no mala fides have been pointed out by the learned counsel for the petitioner against the complainant or the police for the false involvement of the petitioner. He has relied on Muhammad Azam v. The State (1996 SCM R 71), wherein the Hon'ble apex Court had held that right of pre-arrest bail was limited to exceptional and rare cases, which are based on mala fides/enmity or where no offence is shown to have been committed on the bare reading of F.I.R. He next relied on Muhammad Arshad and another v. The State and another (1996 SCM R 74), wherein the Hon'ble apex Court had held that relief of pre-arrest bail was to be granted only in those cases, where it would appear that the registration of the case was based on enmity/mala fides. Lastly he referred to the case of Muhammad Irshad and others v. Amanat Ali and another (2004 SCMR 1375), wherein pre-arrest bail allowed to the accused by the learned Court of Sessions was recalled by the High Court and the Hon'ble apex Court while declining bail to the accused held that criteria for grant of pre-arrest bail to an accused person was different than the standards applied for post-arrest bail.
6. I have heard the learned counsel for the parties at considerable length and have also perused the record brought by Ghulam Hussain, S.-I.
7. It has been observed that the case had been registered as far back as on 29-7-2004. Almost five months have elapsed and the petitioner got interim relief from the Court of Sessions on two occasions and on both occasions he failed to appear before the Court for confirmation of his bail.
This clearly demonstrates that he has been playing acrobatics with the Court and his said act amounts to abusing and misusing the concession of bail. Despite five months having elapsed, he has so far been successfully able to elude the process of law and according to the Investigating Officer has not joined investigation so far. The contention of the learned counsel for the petitioner that he has got nothing to do with his co-accused is belied by the fact that he and his co-accused had been making joint applications for bail before arrest and had also filed a joint writ petition bearing No,16828 of 2004 seeking quashing of the F.I.R. In question in October, 2004. It had been contended on behalf of petitioner that he had nothing to do with the company, whereas in the petitioner's application to the learned Court of Session (Bail Application No, 463, dated 7-10-2004), it was contended on his behalf that he and his co-accused had entered into various agreements with the Chariman, Hasnain Cotex Ltd. The petitioner has been taking inconsistent stands before the learned Court of Sessions and in this Court. In fact the case of the petitioner has all along been a study in contradictions. The learned counsel for the petitioner has not been able to point out any malice or on the part of the complainant or the police so as to implicate the petitioner falsely. As already observed elsewhere the precedents cited by the learned counsel for the petitioner proceed on different facts and do not advance his case for the grant of extra-ordinary concession of pre- arrest bail. On the other hand, the precedent cited by the learned counsel for the complainant are quite apt, wherein it has been held by the Hon'ble apex Court that the extraordinary concession of pre-arrest is to be granted in rare cases. The case of the petitioner does not fall in the category of those rare cases. There is no merit in this petition, which is accordingly dismissed.
8. It has been noticed that Dr. Yawar Anis, 4-Mozang Road, Lahore, who had issued the medical certificate in favour of the petitioner, had been summoned by this Court on 17-12-2004, but he has not bothered to turn up. Let a notice be issued to him to show cause as to why he may not be proceeded against under the Contempt of Court Ordinance, 2004 for disobeying the order of this Court. He shall personally appear on 24-12-2004. Service upon him shall be effected through the S.H.O. Concerned, who shall ensure his presence before this Court on the said date.
9. Office shall prepare a separate file.