' ABDUL SHAKOOR PARACHA, J.--- This order shall dispose of Criminal Miscellaneous No,1367/BC of 2005, Criminal Miscellaneous 1463/B of 2005 because the same arise from the same F.I.R. No,420, dated 10-11-2004 and Reference transmitted vide Letter No,534-SJC/ 2005, dated 11-11-2005 by the learned Special Judge Central, Rawalpindi.
2. Maqsood Khan son of Muzaffar Khan petitioner seeks bail after arrest in case registered vide F.I.R.
No,420, dated 10-11-2004 for offence under sections 420/468/471/109/409, P.P.C. Read with section 5(2)47, P.C.A. At Police Station Margalla, Islamabad. Bail has been declined to the petitioner by the learned Special Judge Central, Rawalpindi, vide his order dated 31-11-2005 hence this petition.
3. Whereas Muhammad Nawaz, Haq Nawaz and Nizakat sons of Faujdar petitioners in Criminal Miscellaneous No,1367/B of 2005 whose land has been transferred by the accused seeks cancellation of bail granted by this Court vide order, dated 26-10-2005 to the respondent No,2 Rab Nawaz.
4. There is no need to recapitulate the entire facts of the case as the same had already been given in my order, dated 14-6-2005 passed in Criminal Miscellaneous No,564/B of 2005.
5. Malik Waheed Anjum, learned counsel for petitioner contends that the petitioner is neither nominated in the F.I.R. Nor is a party to the transaction or marginal witness of the mutation; allegedly he had not obtained any forged I.D. Card of any person or used the same. In this view of the matter, provisions of sections 468, 471 and 420, P.P.C. Are not attracted; co-accused Abdul Hameed with similar role has already been released on bail by this Court vide order, dated 14-6- 2005 passed in Criminal Miscellaneous No,564/B of 2005; therefore, petitioner is entitled for bail on the principle of consistency; bail cannot be withheld as punishment only because the petitioner was compelled to pay Rs,1, 20,000 to Shelter & Shelter (Pvt.) Ltd.
6. Rafaqat Shah, Shahid Maqbool Mirza and Arshad Bashir Malik learned counsel representing the owners of the land whose land was fraudulently transferred through the impugned mutation in favor of Shelter & Shelter (Pvt.) Ltd. By the accused by obtaining forged I.D. Card from NADRA and using the same during the mutation proceedings contends that an amount of Rs,1,20,000 has been recovered from the petitioner; Rs,27,00,000 has been returned to Shelter & Shelter (Pvt.) Ltd., therefore, the petitioner has confessed his guilt; he was master mind behind the whole episode because he had arranged preparation of fictitious and forged bogus card of the vendors as well as witnesses who appeared before the Revenue Officer at the time of attestation on behalf of the real owners; he is not entitled for grant of bail. Lastly he contends that the case of the present petitioner is not at par with Abdul Hameed co-accused.
7. Learned counsel for petitioner Muhammad Nawaz, Haq Nawaz and Nizakat sons of Faujdar whose land was allegedly transferred on the basis of illegal mutation contends that bail of the respondent Rab Nawaz granted by this Court is liable to be cancelled on the following ground:--
(a) in fact the F.I.R. Was registered on the application submitted by the above said owners;
(b) bail has been obtained by concealing the facts and misrepresentation; Shelter & Shelter (Pvt.), Islamabad was not the complainant in the case;
(c) directors and officials of the Company were also accused of the case.
8. Raja Inam Amin Minhas, learned counsel contends that in fact he was not appointed as counsel by the abovesaid owners or Muhammad Abdul Zahoor Tehsildar, Islamabad, complainant but was counsel for Company, but inadvertently he was marked as counsel for the complainant.
9. Reference vide Letter No,534-SJC/2005, dated 11-11-2005 has also been transmitted by the learned Special Judge, Central, Rawalpindi, in which he stated that misconduct of Raja Inam Amin Minhas, Advocate be apprised and the parties to whom he claimed representation but actually not enjoying the status and locus standi as such, and thus by concealing and misrepresentation cheated the Court.
10. Learned counsel for respondent Rab Nawaz contends that Rab Nawaz was not nominated in the F.I.R. He was neither party to the transaction nor the witnesses of the mutation; no role whatsoever was ascribed to him in the F.I.R.; that the respondent was not the accused of the case; he was official of the company; during the investigation A.S.P. Has exonerated him by observing that there was no mens rea on his part; the owners of the land are not the complainant of the F.I.R. But the F.I.R. Was lodged by Muhammad Abdul Zahoor Naib Tehsildar, Islamabad; bail was legally and rightly granted but inadvertently, the counsel for the Shelter & Shelter Raja Inam Amin Minhas was marked as learned counsel for complainant and it was typographical error as it is evident from Wakalatnama submitted by Raja Inam Amin Minhas in the trial Court; once the bail is granted the same cannot be cancelled unless and until the same is without jurisdiction, perverse and is not sustainable; further that one of the Director of the Shelter & Shelter (Pvt.) Ltd. Maqsood Ahmed appeared in Court and confirmed that Raja Inam Amin Minhas, Advocate was its counsel and attorney was signed by him; all these grounds were taken note by this Court in paragraph 2 of the order, dated 26-10-2005 passed in Criminal Miscellaneous No,1165/B of 2005.
11. Arguments heard. Record perused. Maqsood, Khan Petitioner is not nominated in the F.I.R. He is not a party to the transaction, or marginal witness of the mutation. Allegedly he had not obtained any forged I.D. Card of any person or used the same. In this view of the matter, provisions of sections 468 and 471, P.P.C. Are not attracted in the facts and circumstances of the present case.
Bail cannot be withheld as punishment only because the petitioner has paid Rs,1,20,000 to the Company and returned "certain amount. Co-accused Abdul Hameed with similar role has already been released on bail by this Court vide order, dated 14-6-2005, therefore, the petitioner is also entitled for grant of bail on the principle of consistency. He is behind the bar for a considerable period. Therefore, without going deep into the merits of case, I am inclined to admit the petitioner on bail. Resultantly, this petition (Criminal Miscellaneous No,1463/B of 2005) is allowed and the petitioner Maqsood Khan is admitted to bail subject to his furnishing bail bonds in the sum of Rs,10,00,000 (ten lacs) with one surety in the like amount to the satisfaction of the trial Court Duty Judge.
12. Rabnawaz respondent was also not nominated in the F.I.R. He was neither party to the transaction nor the witness of the Mutation. No role whatsoever was ascribed to him in the F.I.R. He was an official of the company and during the investigation A.S.P. Has also exonerated him by observing that there was no mens rea on his part to commit the offence. It is correct that F.I.R. Was lodged by Muhammad Abdul Zahoor Tehsildar, Islamabad, and Raja Inam Amin Minhas got himself marked as counsel for the complainant but from the Wakalatnama submitted by Raja Imam Amin Minhas in the trial Court, it is clear that he was representing the company (Shelter & Shelter (Pvt.)
Ltd.) and not the complainant. One of the Directors of the company Maqsood appeared in Court and confirmed that Raja Inam Amin Minhas was counsel for the Company and attorney was signed by him. All these grounds for grant of bail were taken note in para.2 of the order, dated 26- 10-2005 passed in Criminal Miscellaneous No,1165/B of 2005. In case reported Muzaffar Iqbal v.
Muhammad Imran Aziz and others 2004 SCM R 231 while interpreting the provisions of sections 497(5) and 497(1), Criminal Procedure Code (V of 1898) for cancellation of bail matters, the Honourable Supreme Court of Pakistan had ruled that, "section 497(1), Cr.P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of 10 years or over. Section 497(5), Cr.P.C.
Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left in the Court under section 497(5), Cr.P.C. Which is "pari materia" with the principles which apply to the setting aside of the orders of acquittal". It is important to mention here that in the present case all the offences do not fall within the prohibitory clause of section 497, Cr.P.C.
Grant of bail is a rule and refusal is an exception as held in case reported as Tariq Bashir and 5 others v. The State PLD 1995 SC 34. There is no allegation that the respondent Rab Nawaz after released on bail has created any hindrance in the completion of investigation or trail or misused the concession of bail. This being so, I see no ground to cancel the bail of the respondent Rabnawaz. Therefore, Criminal Miscellaneous No,1367/BC of 2005 is dismissed.
13. Viewed above, no action is called for against Raja Inam Amin Minhas, Advocate in the facts and circumstances of the present case. Resultantly, Reference is disposed of as such.