' IJAZ AHMAD CHAUDHARY, J.---Through this application under section 498, Cr.P.C. Akram Ali, petitioner seeks pre-arrest bail in a case F.I.R. No.928 of 2007, dated 23-8-2007 registered under sections 406/506, P.P.C. At Police Station South Cantt., Lahore on the application of Imran Haider, the Complainant.
2. The brief allegation against the petitioner is that he had received an amount of Rs.3,00,000 as earnest money, which was treated to be as trust and entered into an agreement to sell of the land measuring 4 kanals at the total consideration of Rs.9,00,000. The remaining amount was to be paid on execution of sale-deed, but later on, the petitioner did not comply with the agreement to sell and misappropriated the earnest amount already received by him. Hence, the F.I.R.
3. The learned counsel for the petitioner has contended that the petitioner had entered into agreement to sell with Ghulam Hussain for the sale of the disputed land and not with Eden Developer as mentioned in the F.I.R.; that sale-deed was to be executed on 19-12-2003, but Ghulam Hussain failed to prepare the documents for execution and to make the payment of remaining amount; that the petitioner had also sent a legal notice on 18-2-2003 to said Ghulam Hussain, who has filed a suit for specific performance of the agreement to sell on 19-11-2007, which is pending adjudication; that the civil dispute has been converted into criminal offence with mala fide intention and ulterior motive only to pressurize the petitioner, who may be allowed pre-arrest bail.
4. The learned Deputy Prosecutor General has opposed this bail petition on the ground that the bail before arrest is an extraordinary relief; that the execution of the agreement to sell has been admitted by the petitioner, who failed to return the earnest money and is guilty of the offence.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.
6. According to the record, an agreement to sell was entered upon on 19-11-2002 with Ghulam Hussain and there was no condition in the agreement to sell that earnest money would be treated trust amount as claimed by the complainant in the F.I.R. It is also found that no agreement to sell had been entered upon between the petitioner and Eden Developer. The non-compliance of agreement to sell does not constitute any offence, but the purchaser could file a suit for specific performance of the agreement, which according to the learned counsel for the petitioner has already been filed by Ghulam Hussain, which is pending adjudication in the Court of competent jurisdiction. On the other hand, the claim of the petitioner is that Ghulam Hussain has failed to perform his part for the payment of the remaining amount in spite of the fact that the petitioner had sent a legal notice on 18-2-2003 for the execution of sale-deed. The story narrated in the F.I.R.
Is prima facie falsified from the contents of agreement to sell that the earnest amount of Rs.3,00,000 was given as trust. Only the civil Court is competent to adjudicate upon the matter between the petitioner and Ghulam Hussain for the performance of agreement to sell in dispute.
The registration of the present case seems to be with mala fide and civil dispute has been converted into criminal offence. The criminal machinery cannot be used as a tool to put pressure upon the other party, but the Courts have to see A that whether there is sufficient material on the record to connect the accused with the alleged crime and the purpose of the criminal litigation is not to humiliate the other party. In the present case prima facie no offence is made out against the petitioner.
7. For the foregoing reasons, the instant application is accepted and ad interim pre-arrest bail already granted to the petitioner by the Court B vide order, dated 8-10-2007 is confirmed subject to his furnishing fresh bail bond in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
8. Before parting from this order, CCPO, Lahore is directed to take disciplinary action against Nazir Hussain S.-I./I.O. And Aftab Ahmed S.H.O., who had registered this case is spite of the fact that apparently it was dispute of civil nature between the parties which was already pending before the Court of competent jurisdiction for the performance of the agreement to sell in dispute. Then even, if the case was registered, it should have been cancelled on the very first date, when the agreement to sell was brought on the record, which does not find mention that the amount of Rs.3,00,000 allegedly paid to the petitioner was to be treated as earnest money. Both the said police officers seem to be inefficient in the discharge of their duties, who shall be proceeded on the departmental side and report of the action, so taken against them shall be communicated to this Court through Deputy Registrar (Judicial) within one month after the receipt of this order.