SHAHID ANWAR BAJWA, J.---F.I.R. No, 299 of 2010 was recorded on 1-6-2010 at Police Station Zaman Town in January, 2010.
2. It was stated by the complainant (who is widow) that she was residing at House No, 845, Sector 48-E, Korangi No, 2-1/2, Karachi along with her children. In the month of January, 2010 between 10 and 11 p.m. while she was at home two applicants in Criminal Bail Applications Nos. 431 and 734 of 2010 along with one known and two unknown persons having weapons entered into her house and took out documents of the house on strength of fire arms after breaking open lock of the locker and her thumb impressions were forcibly taken on stamp papers and dispossessed her from that house. She further stated that she was promised' that a flat will be given to her and some fabricated documents were provided to her She stated that when she had told that such documents were fabricated threats were given that her children would be detained and she would be killed. She went to police station for registration of F.I.R. but it was not done and after obtaining order from the District Sessions Karachi East she came to police station and her F.I.R. was registered.
3. Learned counsel for applicant in Criminal Bail Application No,731 of 2010 referred to statement submitted by the complainant on 15-5-2010 to the S.H.O. and contended that here are contradictions between this statement and her subsequent statement under section 154, Cr.P.C. on the basis of which. F.I.R. has been registered. Learned counsel further referred to Page 27 which is under the title of sale agreement and receipt. It states that amount of Rs, 5,70,000 has been received by the ,complainant and she had promised to give file and possession of House No,L-845.
Learned counsel also referred to tenancy agreement dated February 4, 2010 to contend- that complainants had taken another apartment on rent because she herself voluntarily handed over possession to the applicant. Learned counsel further submitted that complainant has also filed complaint under the provision of Illegal Dispossession Act in which besides the applicant in Criminal Bail Application No, 731 of 2010 three other persons have been named as those who illegally dispossessed her of her house. Learned counsel relied upon Gulsher v. The State (2000 PCr.L.J 1482), Muhammad Ramzan v. Zafar Ullah and another (1986 SCM R 1380), Mahakumuddin and others v. The State (2002 PCr.LJ 1628) and Muhammad Rizwan v. The State and 3 others (2007 PCr.LJ 78).
4. Mr. Zafaruddin Khan learned counsel for applicant in Criminal Bail Application No,734 of 2010 adopted the arguments of. Mr. M.M. Tariq and submitted that brother-in-law (brother of husband) of the complainant gave a cheque to the applicant which cheque was dishonoured and the present proceedings have been initiated as a counterblast. He submitted that applicant is neither beneficiary nor witness nor executant of any document. He further submitted although challan was submitted in the month of July but no witness has so far been produced in the Court below.
5. Learned counsel for the complainant referred to litany of disputes between the parties and stated that applicants being land grabbers had illegally dispossessed the complainant from her house. He submitted that complainant is a widow. He further submitted that it is not believable that somebody would give a huge amount of Rs, 5,70,000 in case to a widow without receiving property documents or registration of the same. He further submitted that no mala fide of police has been pointed out, therefore, no case of pre-arrest bail has been made out. Learned Assistant Prosecutor-General adopted arguments of learned counsel for complainant.
6. 1 have considered submissions of learned counsel for the parties and have also gone through the record.
7. Pre-arrest bail application has been dismissed by the trial Court for the following reasons:-- "The contention of the learned counsel for the applicants/accused is that they have purchased the House No,L-845, Sector 48-E from the complainant in lieu of Rs,8,00,000 out of which the complainant has received Rs,5,70,000 and in this regard they have also produced receipt regarding the payment made to the complainant, out of which one receipt dated 19-1-2010 shows that the complainant has received Rs,50,000 in presence of one Zeeshan Ahmed, who put his thumb-impression on the receipt. It is very surprising that the said witness Zeeshan Ahmed as per record produced before the Court was arrested in F.1.R. No,546 of 2010 under section 392, P.P.C. of Police Station Zaman Town and was remanded to Jail by the learned XVI JM Karachi East on 12-12- 2009, who was granted bail and was released on 10-02-2010, Vide certified copy of released writ issued in S.C. No,09 of 2010 of F.I.R. No,548 of 2009 under section 392, P.P.C. of Police Station Zaman Town, pending before the VII- Assistant Sessions Judge, -Karachi East. This also shows that the said witness Zeeshan of receipt dated 19-1-2010 remained in jail from 12-12-2009 to 102-2010 it is impossible for a person who is confined in Jail become a witness of payment of receipt, which shows mala fide in the part of applicants/accused, as such, it also creates doubt on the documents of purchasing the said house by the applicant and the applicants have not approached the Court with clean hands and as such they are not entitled for concession of bail.
Hence order of pre arrest bail granted earlier to the applicants/accused is hereby recalled. Office is directed to send such intimation to the concerned IO/SIO for information and compliance."
8. Learned counsel for applicants was asked whether any statement in the bail application has been made explaining point which is relied upon Court by the below for rejecting pre-arrest bail application. Learned counsel specifically stated that this has not been explained in the application.
9. Learned counsel relied upon GulSher's case (supra). In that case application for pre-arrest bail had been dismissed by the Sessions Court Dadu, Interim pre-arrest bail was granted by this court.
High Court observed that post-arrest bail application had been allowed to the co-accused and, therefore, pre-arrest bail allowed to Gul Sher was confirmed. In the present case co-accused Noor Mohammad was granted bail for the following reason:-- "After hearing the learned counsel for the parties, it is clear that accused has been granted pre- arrest bail by the Hon'ble Sessions Court but surety could not be furnished on behalf of the present accused, therefore, he was arrested, while the other two co-accused have furnished surety and are on bail. There is inordinate delay in lodging the F.I.R., which makes the case of further inquiry, as such I admit the accused to bail in the sum of Rs,50,000 and P.R Bond of like amount."
10.All that persuaded the trial Court to grant bail to coccused NOM Muhammad was two things.
Firstly delay in lodging F.I.R. and secondly grant of pre-arrest bail to the co-accused. Facts are therefore clearly distinguishable.
11. In Muhammad Ramzan's vase pre-arrest bail was granted to one accused and after arrest bail was granted to other accused. Petitioner challenged pre-arrest bail but did not challenge post arrest bail granted to the co-accused. Supreme Court observed that case of petitioner was not distinguishable from that of other to whom bail had been allowed. In Muhhakumddin's case (supra) delay of 4/5 days in lodging of F.I.R. without satisfactory explanation was considered.
However, case is distinguishable because it was case of murder and no eyewitness of occurrence was produced who could have actually seen the incident. Moreover dead body of deceased had not been recovered.
12.Last case relied upon by the learned counsel was of Muhammad Rizwan (supra). It is an application for cancellation of bail.
13.In the present case there are certain feature which cannot be lost sight of Number one the complainant is a lady widow who alleges that sanctity of her house was violated in the mid of night. Number two the applicants claimed that there is sale agreement, It is not a registered document. Moreover huge amount of Rs 5,70,000 is said to have paid in cash without getting documents registered and since learned counsel for applicants submitted that complainant is not owner of property, without ascertaining as to whether person to whom amount had been paid is the owner of property or not and number three it is not a case of civil dispute where question is whether ."A" is owner of property or not.
14.Subject-matter of complainant is an offence where it is alleged that sanctity of house has been violated and criminal intimidation has been resorted to a woman and she has been subjected to serious threats. It is not a case of civil dispute but the case of criminal allegation. In any case, it is a pre-arrest bail application and paradigms for consideration for deciding pre- arrest bail application are materially different from the paradigms for consideration of post arrest bail application.
15.Consequently, these applications are dismissed. If applicants approach the trial Court with bail application after arrest the trial Court shall decide that application in accordance with law without in any manner whatsoever being influenced by any of the observations made hereinabove.
16.These are the reasons of short order passed on 3-1-2011.