' TARIQ SHAMIM, J.--- This order will dispose of Criminal Miscellaneous No,4340/B of 2006 filed by Tahir Mahmud and Criminal Miscellaneous No,4365/B of 2006 filed Muhammad Siddique petitioners seeking bail before arrest in case F.I.R. No,523, dated 11-12-2005 under sections 420, 468, 471, P.P.C. Registered at Police Station Barki District Lahore.
2. The brief facts of the case are that one Abdul Jabbar purchased a piece of land measuring 27 Kanals, 19 Marlas situate at Baidian Road, Lahore vide agreement to sell, dated 30-7-2005 for a consideration of Rs,1,40,00,000 from one Ali Asghar son of Jalal Din. The complainant after a lapse of few days visited the said land and found that Tahir Mahmud petitioner was in occupation of the said land and that the boundary wall of the complainant had also been damaged by the petitioners. The complainant further stated that Tahir Mahmud petitioner in league with Muhammad Siddique petitioner and his brother Muhammad Shafi sons of Muhammad Ismail had prepared false documents and on the basis of the said documents Tahir Mahmud petitioner had illegally occupied the land in question.
3. Mr. Munir Ahmad Bhatti and Rana Muhammad Akram Khan, Advocates, learned counsel for the petitioners contended that in fact the property in question was not a vacant piece of land but was in fact an Ice Factory which had been purchased by the petitioner from one Muhammad Rashid Pervaiz Wing Commander on 1-12-1992 and Mutation No,1161 was also entered in his name in the Revenue Record in January, 1993; that Ali Asghar from whom the complainant had purportedly purchased the land in question had sold the suit-land to the Muhammad Rashid Pervaiz through a decree of the Civil Court passed on the basis of the statement made by the said Ali Asghar conceding claim of the said Wing Commander and duly recorded in the record of the case, hence any document executed by Ali Asghar in favour of the complainant Abdul Jabbar is illegal and of no consequence; that the complainant has alleged that Muhammad Siddique and Muhammad Shall had prepared the titled documents in favour of Tahir Mahmud petitioner which fact stands falsified as Muhammad Shafi died in the year 1996; that the complainant apart from referring to an agreement to sell has not produced or referred to any registered title document which goes to show that no sale in favour of the complainant ever took place whereas on the other hand Tahir Mahmud petitioner has all the documents in his possession to establish his title in the property in question which were produced before the Investigating Officers. However, despite repeated reminders the complainant was not produced any title document before the police till date; that the F.I.R. Had been lodged by the complainant at the behest of the said Ali Asghar who was manoeuvring to harass the petitioners in order to extract more money from them; that in four investigation the petitioners were declared innocent by the police; that the petitioner Tahir Mahmud produced not only the electricity bills of the ice factory established on the land in question issued in the name of Wing Commander Muhammad Rasheed Pervaiz but also in the name of the said petitioner who had further paid off the loan taken by the previous owner which established that Tahir Mahmud petitioner was a bona fide purchaser of the property at third place; that the offences under sections 468, 471, P.P.C. Mentioned in the F.I.R. Were non-cognizable offences and which further did not fall within the prohibitory clause of section 497, Cr.P.C. And that the offence under section 420, P.P.C. Was bailable offence, hence, the petitioners were entitled to the concession of pre-arrest bail.
4. On the other hand, learned counsel appearing on behalf of the State assisted by Rana Muhammad Zahid, Advocate, the learned counsel for the complainant contended that the petitioners had failed to establish any mala fide on the part of the complainant or the police for their false involvement in the case which was a prerequisite for grant of pre-arrest bail; that the police during investigation did not take into account all the relevant facts; that the petitioners were duly nominated in the F.I.R. And specific role of fabricating documents had been ascribed to them; that all the Revenue Authorities had concurrently found Ali Asghar as the owner of the land being the son of Jalal Din, hence the agreement to sell executed by Ali Asghar in favour of the complainant was a valid and a legal document; that in the civil litigation pending between the parties an application under section 12(2), C.P.C. Had been filed by the said Ali Asghar; that in the suit filed by the petitioner no interim injunction was granted by the learned Court as the petitioners did not have a prima facie case in their favour and that the petitioners had failed to show' any exceptional circumstance entitling them to the grant of extraordinary concession of pre-arrest bail.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, there is a delay of 5 months in lodging of the F.I.R. Which has not been explained and on account thereof the veracity of the A prosecution case has become doubtful. In 1992 Wing Commander Muhammad Rasheed Pervaiz filed a suit against said Ali Asghar from whom the complainant has purportedly purchased the property in question in which the said Ali Asghar appeared before the Court and got his conceding statement recorded whereupon decree was passed in favour of Wing Commander Muhammad Rasheed Pervaiz from whom subsequently, Tahir Mahmud petitioner purchased the land and the ice factory constructed thereupon in December, 1992 and Mutation No,1161 was also sanctioned in his name. Thus, prima facie the title of the property in question vests in Tahir Mahmud petitioner as he has all the relevant documents in his possession which were produced before the Investigating Officer during the course of investigation. It would be pertinent to mention here that four investigations in this case were conducted; one by the S.-I., two by the D.S.Ps. And the fourth one by none other than the D.I.-G.
(Investigation) himself In all the investigations it was opined by the Investigating Officers that Tahir Mahmud petitioner was the owner in possession of the land as well as the ice factory constructed thereupon. The Investigating Officers further observed that the complainant despite repeated reminders was not producing any document of title in respect of the property in question. Thus, the case of the petitioners is one of further enquiry in view of successive investigations conducted by senior Police Officers in which the petitioners were declared innocent. The documents placed on the file, in particular the electricity bills of the ice factory issued in the name of the previous owner as well as Tahir Mahmud petitioner further demonstrates that the stand taken by the petitioners that Tahir Mahmud petitioner is the, owner in possession of the ice factory is not without substance.
Learned counsel for the complainant in his arguments has not been able to controvert the stand taken by the learned counsel for the petitioners that Ali Asghar is the person behind the complainant who in order to extract money from the petitioners, has manoeuvred the registration of the instant case against the petitioners. Further the story narrated in the F.I.R. Is belied by the fact that serious allegations of forging documents have been levelled against the brother of Muhammad Siddique petitioner who as per the death certificate placed on the record,- had died in 1996 i.e. Approximately 10 years before the lodging of the B F.I.R. This fact again creates doubts about the authenticity of the prosecution case the benefit of which even at bail stage must go to the accused. The offences mentioned in the F.I.R. Are prima facie not attracted to the case of the petitioners whicheven otherwise are not hit by the prohibitory clause of section 497, Cr.P.C. Hence, in case not punishable with death, transportation for life or ten years imprisonment, C grant of bail is a rule and refusal is an exception as held by the Honourable Supreme Court in the case of Tariq Bashir and others v. The State PLD 1995 SC 34.
7. For what has been discussed above, these petitions are accepted and the ad interim pre-arrest bails already granted to Tahir Mahmud and Muhammad Siddique petitioners vide orders, dated 1- 6-2006 and 2-6-2006, respectively, are confirmed subject to their furnishing fresh bail bonds in the sum of Rs,1,00,000 each with one surety each in the like amount to the satisfaction of the trial Court.