' AMIR HANI MUSLIM, J.---Through these proceedings, the applicants Iqbal Ahmed and Mst. Azmat Iqbal seek bail before arrest in Crime No, 136/2009 under sections 420, 468, 471, 506, 34, P.P.C. Of PS PIB Colony, Gulshan Town, Karachi. The F.I.R. Was registered on 2-6-2009 in regard to the incident, which took place on 6-1-2007. Earlier, on 21-7-2009 their bail before arrest application was dismissed by the learned V Additional Sessions Judge, Karachi (East).
2. Brief facts of the case, as narrated in the F.I.R., are that applicant Iqbal Ahmed along with other co-accused Ahmed Khan and Maqbool Ahmed Khan have negotiated with the complainant for selling commercial Plot No,ST-14 (3-B/2) Sector 15-A/4, Buffer Zone, Karachi, measuring 400 square yards. It was pretended that Mst. Azmat-un-Nisa, applicant No,2 herein, was the owner of the said plot. Accordingly, on 6-1-2007 a sale agreement was executed between the applicant No,2 and complainant and on the same day the applicant No,2 has received token/advance of Rs,10,00,000 from the complainant. Subsequently, on 10-2-2007 the applicant No,2 received further part payment of Rs,90,00,000 from the complainant and the remaining amount of Rs,85,00,000 was agreed to be paid by the complainant within one year. The sale agreement was executed in presence of Asif and Syed Munirullah in whose presence the amount of Rs,10,00,000 and Rs,90,00,000 were paid by the complainant to the applicant No,2 against sale receipt.
3. The original sale agreement, dated 6-1-2007 entered into between the applicant No,1 and the complainant, was placed before me by the learned counsel for the complainant. It appears that, in order to wriggle out of the predetermined fraudulent act, the applicants in connivance with Maqbool Ahmed, Mst. Badar Sultana and Masroorul Islam have filed a Civil Suit No, Nil of 2009 in this Court for declaration, permanent injunctions, recovery of Rs,100,00,000 as well as Rs,50,00,000 being compensation and damages against the complainant and official Defendants. In the said civil suit, which was never admitted by the office for want of objections, the applicants have taken a stand that on 64-2007 plaintiff No,4, Mst. Azmat Iqbal, has entered into a Sale Agreement with the complainant for purchasing Commercial Ph), No,ST-14(3-B/2), Sector 15-A, Buffer Zone, Karachi and complainant has received Rs,100,00,000 from the plaintiffs being the part payment of total sale consideration of Rs, 1,85,00,000. In the said suit following reliefs were sought against the complainant:-- "(a) Decree for the declaration that since the defendant No,1 has taken, received the amount of Rs,100,00,000 from the plaintiffs being the part payment out of the total amount of sale consideration in respect of commercial Corner Plot No,ST-14 (3-B/2) of measuring 400 square yards situated in Buffer Zone, Sector 15-A/4, North Karachi, Karachi, has failed to execute the sale- deed, deliver the physical, vacant possession of the said plot to the plaintiffs, he was found unauthorized to sell the same, thus due to the .:aid reasons the defendant No,1 is bound to refund the said amount to the plaintiffs.
(b) Decree for the declaration, that the subordinate staff of the defendant No,2 have no any power, authority to call the plaintiffs at Police Station or to take them forcibly with them from their house illegally, unauthorized, forcibly unless and until they may not require defendant No,1 has caused to the plaintiffs above named by taken them to the PIB Colony Police Station in the Police Mobile of the said Police Station, keeping them at Police Station, giving the threats to them for their falsely implication in criminal cases, as well as by visiting their house without any lawful cause, justification as well as by giving the abuses using dirty language against the plaintiffs in order to defame them, damage their good reputation, directing the defendant No,1 to pay the aforesaid amounts to the plaintiffs above named, failing wherein the said amount may please be got recovered from the defendant No,1 through the process of law along with the interest at the rate of Rs,20% per annum with effect from the date of institution of the above suit till the realization of the whole amount.
(c) Cost of the suit.
(d) Any other relief or reliefs as this Hon'ble Court may deem think fit and proper in view of the circumstances of the case."
4. Ultimately, on 25-5-2009 the applicants/plaintiffs withdrew this suit, inter alia, on the ground that it suffers from formal defects and permission was sought for filing a fresh suit. This Court vide order, dated 25-5-2009 has dismissed the said suit as withdrawn.
5. The aforesaid suit was based on a sale agreement, dated 6-1-2007 claimed to have been executed by the complainant in favour of applicant No,2 for sale of the same commercial plot. I have seen the photocopy of the alleged sale agreement executed by the complainant as vendor and applicant No,2 as the vendee, the original of which has not been placed before me. I have also seen original sale agreement, dated 6-1-2007 executed by applicant No,2 in favour of the complainant for Sale of the said commercial plot. Prima facie, photocopy of the sale agreement, claimed to have been signed by Syed Ikramullah, complainant, as seller, is sheer fabrication of original sale agreement. Apparently, the applicants have surreptitiously used photocopy of original sale agreement and replaced only the second and third defining paragraphs of vendor and vendee while the rest of the paragraphs are verbatim the same. Interestingly, the Stamp Vendor, Muhammad Yaqoob, Advocate; date of 6-1-2007; and witnesses of both the sale agreements are same. It also appears that, prima facie, signatures thereon have been forged.
6. Moreover, during investigation of the case, the I.O. Has addressed a letter to the Lessor/City District Government Karachi, KDA Wing, (Land and Estate Department), Karachi, for verification of the title documents of Plot No,ST-14(3-B/2) Sector 15-A/4, Buffer Zone, Karachi. The Dy. District Officer (Rev) Headquarters, Katchi Abadies, CDGK vide letter, dated 29-6-2009 replied that document of the said plot are bogus and manipulated and have no legal status. Later on it was also transpired that Chaudhry Shahab was the original owner and applicant No,2 was not the owner of the said plot. The I.O. Has also examined Asif and Syed Munirullah, witnesses to the sale agreement, and the Chaudhry Shahab. The witnesses have categorically stated that Mst. Azmat Iqbal and other co-accused have received the payments of Rs,10,00,000 and Rs,90,00,000 on 6-1- 2007 and 10-2-2007 respectively from the complainant in their presence. The witnesses have also verified the contents of sale agreement, dated 6-1-2007 executed by Mst. Azmat Iqbal as vendor.
7. In the above background the applicants are seeking bail before arrest. Mr. M. A. Kazi, learned counsel for the applicants has contended that offences with which the applicants are charged are punishable under sections 420 and 506 P.P.C., which are bailable while for other offences under sections 468 and 471, P.P.C., which are non-cognizable, no permission was obtained by the police from the Magistrate before registration of the F.I.R. The learned counsel for the applicants has next contended that section 497, Cr.P.C. Has recently been amended where a woman, not guilty of financial corruption or murder or terrorism, is entitled to bail. According to him, applicant No,2 being a woman is entitled to bail before arrest as a matter of right. He in support of his arguments has relied upon the case of Muhammad Azam v. State reported in 2005 PCr.LJ 906, case of Muhammad Arshad Kausari v. State reported in 2007 YLR 1282 and the case of Razia Shaheen v.
State reported in PLD 1997 Lah.
659. Lastly he submitted that the trial Court has granted bail to co-accused Maqbool Ahmed, Challan has been submitted and there was no mens rea on the part of the applicants, therefore, he prays for confirmation of interim bail before arrest granted to the applicants.
8. On the other hand, Mr. M.A. Qureshi, the learned Assistant Prosecutor-General, has opposed the bail application, inter alia, on the ground that the applicants are habitual criminals. According to him, applicant Iqbal Ahmed along with Maqbool Ahmed and Shakeel Ahmed has also cheated one Mujahid Ashfaq son of Ashfaq Hussain. According to the learned APG cheques of Rs,20,00,000, Rs,29,00,000, Rs,50,000 and Rs,30,000 were issued by the applicant No,1 and other co-accused, two of which were dishonored. Accordingly, F.I.R. No, 81 of 2008 under section 489-F, P.P.C. At Police Station Super Market, Karachi, was registered against them. The applicant No,1 present in Court states that in that case their bail before arrest was confirmed and the case has not yet proceeded.
9. The learned counsel for the complainant states that civil suit filed by applicants and others against the complainant was itself defective. In this context, he referred to paragraphs 4, 6 and 25 of the plaint. According to him at no point of time the original sale agreement, dated 6-1-2007, claimed to have been executed by the complainant as Vendor of the said plot, was produced either before this Court or before the I.O. The learned counsel for the complainant claimed that even today the applicants did not produce the original sale agreement, dated 6-1-2007, on which they are relying knowing fully that there was no such agreement.
10. I have heard the learned counsel for the parties, the learned Assistant Prosecutor-General and perused the 'record. Prima facie, a case of fraud and forgery has been made out against the applicants. Moreover, applicant Iqbal Ahmed after grant of interim bail before arrest remained absent before the trial Court on several occasions. In this respect , the trial Court has submitted a report on the direction of this Court stating therein that on 29-8-2009, 17-8-2009, 14-12-2009, 9-1- 2010 and 26-1-2010 the applicant No,1 did not appear before the Court and has sent medical certificates. One of the medical certificates submitted by the applicant No,1 was found bogus, as the Abbasi Shaheed Hospital, Karachi, has reported that they never issued it. The trial Court in the last paragraph of its report, dated 29-1-2010 has observed that:-- "On 26-1-2010 when the case was fixed for hearing, the defence counsel appeared along with accused Mst. Azmat Iqbal and filed application for condoning absence of accused Iqbal Ahmed.
On the same date two reports were received from Abbasi Shaheed Hospital, one showing the said certificate genuine and the other denying the same. When the undersigned was passing the order on such reports for calling the issuing authorities of said reports in person, the learned advocate for accused flared up and levelled false and baseless allegation in open Court that the complainant met with undersigned in chamber therefore he had no faith in this Court. Although the allegation levelled by the defence counsel was false and baseless, yet in the interest of justice the matter was referred to the Honourable District and Sessions Judge, Karachi East for transfer of the case to some other competent Court for its disposal according to law, which has been declined by the Honourable District and Sessions Judge, Karachi East vide order, dated 29-1-2009. Now the matter is fixed on 6-2-2010.
' It is respectfully submitted that accused Iqbal Ahmed is not appearing before this Court since 6- 10-2009 on medical ground, as mentioned above, however accused Mst. Azmat Iqbal is appearing on each date of hearing."
11. What is more painful is that when the trial Court dismissed the bail before arrest application, the counsel representing the applicants started shouting and using filthy and abusive language in open Court. In this regard, the learned V Additional Sessions Judge, Karachi East, after passing the impugned order, dated 21-7-2009 has made following observation in the foot note:-- "At this stage Pir Riaz Muhammad Shah Advocate entered in Court and upon hearing of dismissal of the bail application he became violent and started shouting by using filthy and abusive language in open Court, which is witnessed by the learned counsel, litigant public and Court staff.
Let contempt of Court notice be issued against him."
12. From the above observations of the learned trial Court and the learned V Additional Sessions Judge, Karachi (East), it appears that the counsel for the applicants has the habit of misbehaving with the Courts in case if an order adverse to his client is passed. This warrants action against the counsel under section 42 of the Bar Council Act, as he does not have licence to malign the Courts.
In the given circumstances, the trial Court can always approach the Sindh Bar Council with a complaint.
13. I am not persuaded by the arguments of the learned counsel for the applicants and the cases relied upon by him are distinguishable on facts. Firstly, the case of Muhammad Azam (2005 PCr.LJ 906) cited by the learned counsel relates to quashment of proceedings in writ petition and it was not a case of bail before arrest. In the case of Muhammad Arshad Kausari (2007 YLR 1282) a civil suit was pending between the parties while in the case in hand the Civil Suit filed by the applicants and others was withdrawn by them. Lastly, the case of Razia Shaheen PLD 1997 Lah. 659 is not applicable as in the said case the F.I.R. Was sealed by the police. As regards the amendment brought in section 497, Cr.P.C. Is concerned, with profound respect, cases of bail before arrest fall under section 498-A, Cr.P.C. And such protection to women is not available under section 498-A, which section has not been amended.
14. As far as the question of delay in lodging the F.I.R. Is concerned the same is self-explanatory.
After executing the sale agreement, dated 6-1-2007 as Vendor, the applicants and other have filed civil suit in this Court as Vendee and once the said suit was dismissed, the complainant was justified in seeking registration of the F.I.R. Against the applicants. The contention of the learned counsel for the applicants that section 506, P.P.C. Is bailable is also misconceived in as much as the allegation is that the applicants have threatened to kill the complainant, which offence is covered under proviso to section 506, which is non-bailable. The challan in the proceedings has been submitted on 13-7-2009, which implies that the objection that Police cannot register the case under sections 468 and 471, P.P.C. Without prior permission of the Magistrate is covered once the trial Court took cognizance and accepted the challan.
15. The Honourable Supreme Court in the case of Muhammad Arshad v. Muhammad Rafique reported in PLD 2009 SC 427 has laid down the guidelines for grant of bail before arrest. The case of the applicants is fully covered by it as such the applicants are not entitled to grant of bail before arrest. Additionally, one of the applicants has misused the concession of bail by avoiding appearance. Moreover, the learned counsel for the applicants has failed to show that complainant has lodged the F.I.R. With ulterior motive besides the applicant No,1 has past criminal record i.e, F.I.R.
No,81 of 2008 is pending against Iqbal Ahmed and others, therefore, they are not entitled for grant of discretionary relief.
16. In view of the above reasons and in view of the dicta laid down by the Honourable Supreme Court in the case of Muhammad Arshad (supra), I recall the order, dated 17-8-2009 of interim bail before arrest and dismiss this bail application. Office is directed to return the R&P to the trial Court immediately.
' The observations made hereinabove are tentative in nature and the trial Court shall not be influenced by the same..