This order shall dispose of Crl. Misc. No. 5069-B/2007 (Sarwar Mehmood vs. The State) for the grant of pre-arrest bail, Crl. Misc. No. 5048-B/2007 (Muhammad Umar vs. The State) for the grant of bail after arrest and Cr1. Misc. No. 5043-B/2007 (Noor Muhammad vs. The State) for the grant of pre- arrest bail, as all the above mentioned three bail petitions arise out of the same FIR No. 106/2007 dated 6.3.2007 under Sections 420/467/468/471 PPC, Police Station Nisther Colony, Lahore.
2. Learned counsel for petitioners Sarwar Mehmood and Noor Muhammad, who have filed Crl. Misc.
No. 5069-B/2007 (Sarwar Mehmood us. The State and Cr1. Misc. No. 5043-B/2007 (Noor Muhammad vs. The State), submit that the original agreement to sell, which was forged by Muhammad Umar co-accused, was with him; that the said Umar has been sent to judicial lock up; that both the above mentioned petitioners have neither signed the said agreement to sell nor they were party to it and that their case is one of further inquiry falling in sub-section (2) of Section 497 Cr.P.C.
3. Learned counsel for the petitioner Muhammad Umar, who has filed Crl. Misc. No. 5048-B/2007 (Muhammad Umar vs. The State), contends that he has falsely been implicated in this case; that he is behind the bar for the last about two months; that he remained on physical remand for six days but noting incriminating was received from him; that even the original agreement to sell has not been recovered from him that co-accused Sardar Muhammad, who was discharged from the case, has filed a civil suit against Ismail, a son of the complainant, to whom the said suit land was gifted; that it is a case of civil nature and that he is entitled to bail after arrest.
4. On the other hand, Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor General, while appearing on behalf of the State, assisted by complainant's learned counsel, submits that there is sufficient evidence on the record against the Muhammad Umar accused in the form of statement of Sardar Muhammad under Section 161 Cr.P.C. and that of concerned Halqa Patwari who stated that Umar had been receiving copies regarding the land in dispute from the Patwar Khana.
5. I have heard learned counsel for the parties, have gone through the record and have also given anxious consideration to the submission made by learned counsel for the respective parties. On the last date of hearing I had issued notice to Sardar Muhammad accused as to why the discharge order passed in his favour be not set aside and also against Bhobhlay Khan as to why the bail a granted to him be not cancelled. Both of them are also present before this Court.
6. As far as case of Sardar Muhammad is concerned, he has been got discharged by the police on the basis of an affidavit of the complainant's son Ismail who had stated in the said affidavit that Sardar Muhammad was innocent in this case and the fraud, if any, has been committed by accused Muhammad Umar while using the identity card of Sardar Muhammad. In view of the above, the notice issued to Sardar A Muhammad qua setting aside the discharge order passed in his favour, is hereby withdrawn. A notice for cancellation of the bail was issued by this Court to Bhoblay Khan accused. He is resent in Court in person and appears to be an old man having infirmity coupled with the fact that the evidence against him is not of such type which could warrant cancellation of his bail, so, the notice issued to Bhoblay Khan for the purpose is hereby discharged.
7. Now I would like to take up both the bail before arrest petitions filed by Sarwar Mehmood and Noor Muhammad [(i.e. Crl. Misc. No. 5069-B/2007 (Sarwar Mehmood vs. The State) and Crl. Misc.
No. 5043-B/2007 (Noor Muhammad vs. The State)]. The allegation against them is that they are only the marginal witnesses of the said agreement to sell, which agreement to sell, according to Asghar Ali Virk SI/I.O., has still not been recovered. It has come on record that the accused Muhammad Umar; immediately after his arrest, made a statement to the effect that he had forged/concocted the same. In the given situation, it was incumbent upon the Investigating Officer of the case to get it recovered from Muhammad Umar accused and then to send it to the Handwriting expert for comparison of signatures of Noor Muhammad and Sarwar Mehmood to dig out the truth, but, this Court is of the affirmed view, that he (Asghar Ali Virk SI/LO.) for mala fide reasons, with ulterior motive, for extraneous considerations and to extend maximum benefit to the accused party and to damage the prosecution, did not recover the same notwithstanding the fact that he (Muhammad Umar petitioner) remained on physical remand with the Investigating Officer (Asghar Ali Virk SI) for ,a period of six days. In my considered view he dishonestly had conducted the investigation in a partial manner and has spoiled the prosecution case by not recovering such an important piece of evidence because the whole case hinges upon the said agreement to sell.
Both the accused persons, namely, Sarwar Mehmood and Noor Muhammad have joined the investigation and stated during the course of investigation that they never signed the same, so, in absence of any opinion qua existence or otherwise of their signatures on the non-recovered agreement to sell, the ad interim pre arrest bails already granted by this Court to Sarwar Mehmood and Noor Muhammad vide order dated 11.7.2007 passed in Crl. Misc. No. 5069-B/2007 (Sarwar Mehmood vs. The State) and vide order dated 9.7.2007 in Crl. Misc. No. 5043-B/2007 (Noor Muhammad vs. The State) are hereby confirmed. However, it is made clear that in case any material is brought on record to connect them with the alleged commission of the offence, then the prosecution shall be at liberty to move this Court.
8. Now this Court is left with the case of Muhammad Umar who has filed Crl. Misc. No. 5048-B/2007 (Muhammad Umar vs. The State) for the grant of bail after arrest. There is evidence on record in the shape of statements of Sardar and Asif to the effect the Muhammad Umar is the real son of Bhobli Khan who is real brother of Mst. Rajjo Bibi complainant and Ismail Advocate is his son, to whom the land in question was gifted by Rajjo Bibi. Umar is not only the beneficiary but is still in possession of the land in question qua which he manoeuvered the fraud in question. More so, the offence alleged against him falls within the prohibitory clause of Section 497(1) Cr.P.C. and this Court is of the, prima facie, view that being main accused in the case, he is not even entitled to the relief of bail after arrest sought through Crl. Misc. No. 5048-B/2007 (Muhammad Umar vs. The State) which is hereby dismissed having no merit.
9. As has been mentioned above that the original agreement to sell has still not been recovered by the Investigating Officer from the said Muhammad Umar accused. It is directed that, in case, the same is recovered, then, the required number of signatures of Noor Muhammad and Sarwar Mehmood (whose bail before arrest has been confirmed today by this Court), would be taken by the Investigation Officer before the learned Ilaqa Magistrate concerned, which, consequently, would be sent to the Handwriting Expert for comparison to un-earth the factual position of the case.
10.Keeping in view the tenor of investigation by Asghar Ali Virk SI/I.O. and while noting dishonest, partial, motivated, tainted with mala fides and extraneous consideration conduct of investigation by him, I had directed the learned Additional Prosecutor General to cause appearance of the concerned SP (Investigation) before this Court. In compliance to the said direction. Azmatullah Gondal, SP (Investigation), Model Town Division, Lahore, has entered appearance. He has been apprised about the manner in which Asghar Ali Virk SI/I.O. has conducted the investigation and tired to badly spoil the prosecution case by not recovering such an important piece of evidence (i.e. original agreement to sell) which has bearing affects on the merits of the case. The Investigating Officer has not satisfied this Court qua the above deliberate lapse on his, part. Even the SP (Investigation) is not in a position to defend the Investigating Officer. Rather he has spoken against him. Article 18(4) of the Police Order, 2002 mandates that "all registered cases shall be investigated by the investigation staff in the district under the supervision of the head of investigation". It appears there is no body to have an eye over the manner of investigation as has happened in the instant case. Until and unless a close look is not kept on the working of the Investigating Officers by the supervisory officers as is mandated under the Police Order, 2002, fruitful and requisite results of the investigation (i.e. fair and impartial) cannot be achieved. I may observe here that if, on the one hand, it is the duty of the Investigating Officers to conduct the investigation as mandated under the Police Order, 2002, but, on the other hand, it is incumbent upon the supervisory officers to have a close eye on the working of the Investigating Officers so that the investigation is conducted secondly, impartially and in the fair manner, as mandated under the law and not otherwise. In case the Investigating Officer is found not to have conducted the investigation in a manner required under the law, the course opened to the supervisory officers is to, firstly, recommend department action against the delinquent Investigating Officer and, secondly, to place the matter before the Board (as mandated under the Police Order, 2002) so that the investigation could be conducted by some honest Investigating Officer to ensue justice to both the parties i.e. the prosecution and the accused and no body should suffer at the hands of the Investigating Officer. I accordingly recommend strict departmental and legal action against Asghar Ali Virk SI/I.O. by the competent authority, and fate of result of the action so taken shall be communicated through the Deputy Registrar (Judicial) of this Court, within a month from today. A copy of this order shall be sent to the Inspector General of Police Punjab and the DIG (Investigation)/Head of Investigation, Lahore, for information and necessary action.