'HAFIZ ABDUL REHMAN ANSARI, J.---Petitioners Muhammad Farrukh Rauf and Muhammad Ahsan Javed, both sons of Muhammad Aslam, through this petition under section 498, Cr.P.C. Seek pre- arrest bail in case F.I.R. No,556 dated 19-9-2009, registered with Police Station Luddan, District Vehari, for an offence under section 379, P.P.C. On the application of respondent No,2 Ch. Muhammad Sarwar.
2. Allegation against the petitioners is that they along with their other co-accused, all armed with fire-arms, on 30-8-2009 at 7-00 a.m. Came in the cotton crop field of the complainant and collected 70/80 mounds of cotton valuing Rs,1,30,000 on gun point and took away while extending threats of life.
3. The petitioners applied for pre-arrest bail which was refused to them by the learned Additional Sessions Judge, Vehari, vide order dated 13-10-2009.
4. Learned Counsel for the petitioners submits that the story narrated in the F.I.R. Is not believable and there is unexplained delay of 19 days in lodging the F.I.R. False implication of the petitioners in the case cannot be ruled out; that civil litigation between the parties was pending before the competent Court of jurisdiction prior to registration of instant F.I.R. And on account of said pending litigation this case was got registered just to pressurize the petitioners and it is mala fide attempt on the part of the complainant to convert the civil litigation into criminal liability. Submits that earlier the complainant had got another case registered against the present petitioners bearing F.I.R. No,253 to 2009 near about on the same identical facts; later on a compromise was effected between the parties and the complainant had withdrawn voluntarily from the land in dispute; that maximum sentence for the offence is 3 years. Refers to the case reported as Muhammad Ramzan v. Zafarullah and another 1986 SCM R 1380.
5. On the other hand, grant of pre-arrest bail has been opposed by the learned ADPP with the assistance of the learned counsel for the complainant. Submits that the case referred by the learned counsel for the petitioners is distinguishable from the case in hand because in that case respondents therein were granted bail before arrest while the other accused were granted after arrest bail on the principle of consistency. Submits that the plea of delay in itself is not a ground for grant of pre-arrest bail. Reliance is placed on the case reported as 2005 YLR 293. Submits that the referred compromise is in fact an arbitration which is duly signed by the Arbitrators. Submits that it is with regard to previous F.I.R. But not about the present F.I.R. That the petitioners have repeated the offence. Submits that the trial Court has refused pre-arrest bail to the present petitioners by observing that instead of offence under section 379, P.P.C. Offence under section 382, P.P.C. Is attracted. Refers to the case reported as Muhammad Waqas v. The State (2002 SCM R 1370).
Submits that the petitioners could not establish the grounds of mala fide and ulterior motive and under the law laid down in Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82, the petitioners do not deserve to the pre-arrest bail. Submits that the petitioners were found guilty in the investigation.
6. I have heard the parties and perused the record. It is admitted that civil litigation between the parties is pending before the competent Court of civil jurisdiction. The alleged occurrence happened in the land of the accused, which is not owned by the complainant. From the contents of the F.I.R. It is not established how 70/80 mounds cotton was stolen as there is no mention of tractor-trolley or truck in the F.I.R. Only it is stated that 50/60 women came along within the petitioners and took away cotton. Secondly the complainant has earlier got registered similar case F.I.R. Against the petitioners vide F.I.R. No,253/09 dated 19-5-2009. In that F.I.R. Similar allegations were levelled in which the present petitioners are also nominated as accused. Ultimately a compromise was effected between the accused and the complainant party through arbitration and on 2-6-2009 arbitration award was announced with regard to the dispute. In that compromise/arbitration decision it is stated that Muhammad Sarwar son of Pir Bakhsh, present complainant, abandoned his right about the land in dispute and handed over the land to the accused party. But apparently it looks that after settling the dispute complainant retracted from the undertaking given by him in the arbitration settlement and again got registered the present F.I.R. Levelling the same allegations. In the previous F.I.R. It was alleged that pesticides were stolen and taken away forcibly. In the present F.I.R. It is stated that 60/70 mounds cotton was stolen. Mala fide of the complainant is established that he is used to lodging the F.I.Rs just to pressurize the other party as civil litigation is pending between the parties. Further, apparently it looks abortive attempt on the part of the complainant to convert the civil litigation into frivolous criminal litigation.
The case law cited by the learned counsel for the complainant reported as Muhammad Waqas v.
The State (2002 SCM R 1370) does not advance the case of the complainant as these two cases are on entirely different facts. In the cited case there was no civil litigation pending between the parties. There was no compromise effected between the parties in the first F.I.R. Got registered between the parties and while in the present case first F.I.R. Was got registered by the present complainant and he effected a compromise and after that retracting from the compromise got registered second F.I.R. In which the petitioners are seeking pre-arrest bail. The cited cases were hurt cases, while the present case is theft case. The learned trial Court incorrectly observed that section 382, P.P.C. Is also attracted, while the learned ADPP stated that the F.I.R. Is still under section 379, P.P.C. which does not fall within the prohibitory clause of section 497, Cr.P.C. Keeping in view the civil litigation between the parties and formidable delay in lodging the F.I.R. In such disputes, false implication of the accused cannot be ruled out. No doubt, allegedly recovery of 60/70 mounds cotton is yet to be recovered but from the circumstances of the case it appears that the whole story of the F.I.R. Is concocted, fabricated and not believable in the light of the circumstances.
7. For the reasons discussed above, ad-interim bail allowed to the petitioners vide order dated 21- 10-2009 passed by this Court is confirmed. The petition is disposed of. The observations in this bail- granting order are of tentative nature, which will not prejudice the case if either side during the trial.