Through this petition under Section 497(5) Cr.P.0 the petitioner .seeks cancellation of bail granted to. Respondents Nos,. 1 to 3 by the Additional Sessions Judge, Rawalpindi, vide order dated 22.1.2004 which was confirmed on 11.2.2004 in case FIR No, 372 dated 8.7.2003 registered at Police Station Saddar Bairooni, Rawalpindi for offences under Sections 365/382/344/420/468/471 PPC. The main thrust of the argument of the learned counsel for the petitioner is that there was no mala fide on the part of the complainant to involve the respondents in the case falsely and therefore there was no jurisdiction available to the learned Additional Sessions Judge to grant bail before-arrest to the respondents which was an extraordinary relief in the circumstances of the case. Besides that the police has been deprived from making recovery from the respondents-accused. Reliance has been placed on the case reported as Sarwar Sultan vs. The State and another (PLD 1994 SC 133).
2. On the other hand, the learned counsel for the respondents-accused contends thht the respondents were involved in the case falsely; there was a dispute of civil nature regarding purchase of Shop No, 31, Mughal Sarai, Raja Bazar, Rawalpindi, owned by son of the complainant; the complainant agreed to sell this shop for Rs, 37,00,000/- to Habib-urRehman, respondent; Rs, 10,00000/- were paid in cash on 4.4.2003 and the balance amount was to be paid at the time of execution of sale-deed. Case of respondent Sh. Habib-ur-Rehman was that the entire amount has been paid and the general power of attorney was also executed by Muhammad Siddique, complainant-petitioner, on 19.6.2003; subsequently it transpired to Habib-ur-Rehman that the shop in dispute was owned by Muhammad Khalil son of the complainant therefore he made a grievance that the complainant has committed a fraud with him. On 3.7.2003 Muhammad Siddique petitioner-complainant, alongwith his brother Lal Hussain appeared before the Registrar for cancellation of the General Power of Attorney; on the direction of the Registrar a 'case FIR No, 399 dated 4.7.2003 under Sections 468,471,420 PPC was registered. It was further contended that nobody had abducted the complainant and he had been appearing in different Departments during the alleged period of abduction i,e, from 18.6.2003 to 13.7.2003. Further contends that the case was proved to be false therefore the DSP Investigation recommended for cancellation of the case.
To rebut this argument the learned counsel for the petitioner contends that the S.P. Investigation Zubair Nawaz Chatha during investigation had found the accused responsible for commission of the offence.
3. I have heard the learned counsel for the parties and perused the record with their assistance.
The agreement dated 4.4.2003 is admitted by the complainant though he states that he has received Rs, 6 Lacs as 'advance. He had shown himself to be owner of Shop No, 31, but in fact his son Muhammad Khalil is owner of the said shop. This seems to be the bone of contention, which has resulted in criminal as well at civil litigation. During investigation the complainant had admitted that he made his signatures on different stamp papers which were purchased by Sh.
Habib-ur-Rehman. Whether the signatures on the documents are forged or not is a question which shall be decided by the Court of competent jurisdiction by comparison of admitted signatures of the complainant with the signatures on the questioned documents on the basis of the report of handwriting expert. The mala fide on the part of the complainant is there. Despite the fact that he was not owner of the shop had executed the agreement to sell and appointed Sh. Habib-ur- Rehman as attorney. The story of abducting him and taking to different, places during the period from 18.6.2003 to 03.7.2003 has also not been substantiated during the investigation. During the investigation it has come on the record that the complainant went to the Forensic Science Laboratory, Islamabad, and submitted an application. The report was obtained by him after putting his signatures. Raja Muhammad Farooq, Manager, Allied Bank, I/10 Islamabad, also confirmed 'before the police that the complainant submitted an application that the cheque may not be encashed and he visited the Allied Bank, 1/10 Islamabad,on 21.6.2003. The jurisdiction of the Court to grant bail in a case which seems to be mala fide or result of ulterior motive cannot be disputed.
Following conditions should co-exist for grant of bail before-arrest as held in the case reported as Sh. Zahoor Ahmad us. The State (PLD 1974 Lahore 256):--
(a) that there should be a genuine proved apprehension of imminent arrest with the .effect of virtual restraint on the petitioner;
(b) that the petitioner should physically surrender to the Court.
(c)that on account of ulterior motives, particularly on the part of the police, there should be apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in Section 497 Cr.P.C. would have to be kept in mind;
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under Section 498 Cr.P.C.
4. All the above stated conditions were co-existing when the bail before arrest was granted to the respondents. Since the jurisdiction has rightly been exercised, therefore, the petition under Section 497 (5) Cr.P.C. could have not been filed before this Court unless there was allegation the accused of tempering with the evidence or creating any hurdle in completion of the investigation of the case or trial was not allowed to be concluded, which is not the position in the instant case.
For what has been discussed above, there is no ground to cancel the bail granted to the respondents by the learned Additional Sessions Judge through the impugned order. Resultantly, this petition fails and the same is dismissed.