1. ' Muhammad Razzaq, the petitioner through the instant petition seeks pre-arrest bail in case F.I.R.
2. No.362 dated 8-9-2003 originally registered under sections 420/452/468/471, P.P.C. With Police Station Nishtar Colony, Lahore. Later on, the police have added sections 448/ 467, P.P.C. In the same.
3. ' Briefly the prosecution case as contained in the F.I.R. Is that Mushtaq Ahmad, the complainant had purchased 4 Kanals of land in Khasra Nos.290 and 291 situated at Dolu Khurd from one Liaqat Ali and others. He constructed two rooms and four walls and also installed the gate thereon.
4. Muhammad Arif and Abdul Razzaq some time ago have asked him to pay them Rs.8,00,000 otherwise they will occupy the said plot and kill him. He due to their threats paid them Rs.8,00,000 and they in lieu thereof gave him receipt to avoid any legal action. They, however, had intended to grab his said plot. They in order to accomplish their such design on 13-6-2003 have forged an agreement to sell from Shahid Saleem and Mubashar Saleem son of Muhammad Saleem through their General Attorney, Arshad Saleem in their favour. They thereafter have filed civil suit and obtained stay order in their favour. They thereafter while armed with lethal weapons have broken open the lock of the door of the same and forcibly occupied. It.
5. ' It has been contended on his behalf that he has falsely been roped in by the complainant with male fide in connivance with the police; that in fact the plot was purchased by his brother, Muhammad Arif Bhatti from Arshad Saleem as General Attorney of Shahid caleem etc. And thereafter a dispute arose between them and one Mehboob Alam and his daughter Mst. Asima Mehboob and his said brother has brought suit for permanent injunction against both of them and in the same day stay order has been issued in his favour, and thereafter a local commission was appointed, who had reported that his brother was in possession of the plot for the last about 7/8 years; that in view of such report the allegations of the complainant of occupation of the plot in dispute by them falls to the ground; that the question of the legality and genuineness or otherwise of the said agreement to sell is sub judice before the competent Civil Court and some verdict in respect of the same is to be returned therefrom; that he had made out a case of mala fide in respect of the allegation but the learned Additional Sessions Judge concerned has erroneously refused him the relief while observing it otherwise; that his said brother was extended relief of post- arrest bail by the leaned Illaqa Magistrate and his observations in Para. 6 of the order on his bail petition are. Quite relevant for decision of the instant matter and that he has joined the investigation and even is ready to do so in future.
6. ' Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that the receipt issued by his brother. Muhammad Arif Bhatti has been found in the investigation to be genuine and if such may be the position then his said brother could not be in possession of the plot and this thing has made report of local commission to be absolutely false; that it has been also found during the investigation that both these brothers in connivance with said Arshad Saleem have forged the document in question; that there had been shown no mala fide on the part of the complainant or the police to seek such extraordinary relief and that is why the learned Additional Sessions Judge has refused him the relief of pre-arrest bail; that Arshad Saleem or his brothers had no concern at all with the plot in question; and that the recovery of the crime-weapon is still to be effected from him.
7. ' I have carefully considered the submissions made by both the sides with the help of available record.
8. ' According to the F.I.R. The petitioner and his brother Muhammad Arif Bhatti in connivance with Arshad Saleem etc: had forged the agreement to sell in question and thereafter on the basis of the same while armed with the lethal weapons had occupied the plot in dispute.
9. ' It is admitted position on record that Muhammad Arif Bhatti, the brother of the petitioner had gone to the Civil Court with his claim of ownership and possession over the plot in dispute against one Mian Mahboob Alam and his daughter Mst. Asima Mehboob. The Para. 1 in his plaint is that suit would be quite significant to mention here. The same is reproduced hereinbelow for reference.
10. "That plaintiff purchased land measuring 2 Kanals, comprising in Khasras Nos.291 and 292 situated in Revenue Estate of Dulloo Khurd, Ferozepur Road, Tehsil Cantt: District Lahore shown in red lines in the plan attached which was the ownership of Mst. Hameeda Begum, widow of Muhammad Saleem, and this purchase was made through the General Attorney of Mst. Hameeda Begum, and her son and daughter, namely Arshad Saleem son of Muhammad Saleem who is the General Attorney of the owners vide document No.1240, Bahi No.4, Jild No.1191, registered at the office of Sub- Registrar, Lahore on 12-4-2002, and this purchase of land, measuring 2 Kanals, above referred, was purchased by the plaintiff of the consideration of Rs.20,00,000, vide document of purchase dated 13-6-2002, and the possession of the same was 'acknowledged vide above said document, whereas the plaintiff bad already in possession of the same much earlier to that vide an oral.
11. Agreement, since long after raising constructions which has now been executed on 13-6-2002.
12. Photocopy of 'the agreement as well as photo copy of the General Power of Attorney, registered at the office of Sub-Registrar, Lahore on 12-4-2002, are attached with this plaint".
13. ' This clearly shows that Muhammad Arif Bhatti has claimed to be the owner of 2 Kanals of land in Kharas Nos.291 and 292 of the, aforesaid village. He has also claimed himself to be in possession of the same. He in the same has sought that the defendants may be restrained to interfere in his lawful possession of the said property.'
14. ' It is further significant to mention here that on 9-7-2002, the learned Civil Judge, concerned had issued status quo order in his favour.
15. ' It has also been borne out from the copies of the record annexed to the petition that the learned Civil Judge had appointed Aamer Yaqoob Bhatti, Advocate as Local Commission to verify the actual position of the possession of the plot in dispute at the site. He on 22-7-2002 has reported that Muhammad Arif Bhatti has been found in possession of the same for the last about 7/8 years and he is using that property for keeping his cattle and selling of fodder, etc. Now it has emerged from the above position that the dispute in respect of the plot in question is sub judice before the competent Civil Court and it is yet to be determined/declared therefrom that whether the said document, i.e. Agreement to sell is forged or genuine one. Hence, at such juncture it would not be fair to comment upon the question of genuineness or otherwise of the same i.e. Document.
16. As regards the allegations that they after having forged the said document had forcibly occupied the said plot, the same I am afraid, in the view of the above indicated report of the Local Commission, requires serious consideration that if it actually was so.
17. ' In view of such position, I have not the least hesitation in observing that the case of the present petitioner is certainly open to further inquiry into his guilt as envisaged by subsection (2) of section 497, Cr.P.C.
18. ' In such situation, I am afraid that the learned Additional Sessions Judge was not right in refusing him the relief prayed for by him there alone on the observation that no mala fide either on the part of the complainant or police existed in the matter. This observation of him was not correct as in the above facts and circumstances of the case the existence of mala fide on the part of the complainant at least could not be overlooked. The same apparently reflected from the said report of Local Commission, who had found that petitioner's brother Muhammad Arif Bhatti, was in possession of the plot in dispute for the last about 7/8 years. So, he had a case for pre-arrest bail.
19. He admittedly had joined the investigation. As regards the question of recovery of crime weapon from him, the same will not come in his way to the grant of relief. Firstly, because he was not shown to have been armed with any specific weapon at the relevant time and secondly no weapon was used in the alleged incident. However, the Investigating Officer may recover the same by using his professional skill, if it may be so required.
20. In these circumstances, the petition is accepted and the ad-interim pre-arrest bail already allowed to him by this Court on 7-10-2003 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Illaqa/Duty Magistrate.
21. ' He, however, shall join the police investigation again, if and when so required to do.
22. ' I may mention here that any observation made above shall not influence the mind of the learned Court concerned in any manner.
23. Pre-arrest .