The petitioner seeks the cancellation of pre-arrest bail granted to the Respondents No, 1 to 7 by the Special Judge Anti-Corruption Rawalpindi Division Rawalpindi vide order dated 26.04.2010 in case FIR No, 28 dated 23.12.2009 under Sections 161, 409 and 420 PPC read with Section 5 of Prevention of Corruption Act No, II of 1947 registered at Police Station Anti Corruption Establishment, Attock.
2. The allegation embodied in the FIR is that land measuring 1247 kanals 14 marlas belonging to Dost Muhammad Khan the paternal uncle of the complainant was transferred in favour of Respondents No, 1 to 3 through Mutations No, 5239, 4240, 5241 entered by Circle Patwari, the Respondent No, 6 and sanctioned on 22.11.2008 by Naib Tehsildar Respondent No,
5. Behram Khan the Lamberdar of the village, the Respondent No, 4 identified the vendor. Muhammad Khan Respondent No, 7 is alleged to have received Rs, 1,00,000/- (one lac) to have the matter hushed up.
The land was sold for a consideration of Rs, 1,75,00,000/- (one crore & seventy five lacs). This amount was allegedly neither paid by the vendees nor received by the vendor. The vendor is alleged to be 100 years of age, physically and mentally incapacitated. The mutations are said to be sanctioned in Tehsil Office Jand. Besides making applications before the Chief Minister, applications were also sent by the complainant to the DCO.
3. It is contended by the learned counsel for the petitioner that there is no record of the source of the huge amount of money paid by the vendees. Not a single penny' is proved to have changed the hands according to the record. There is also no proof of the sale price having been credited into any account of Dost Muhammad Khan, 'the vendor. The mutations were not sanctioned in the Revenue Estate. The same were sanctioned in Tehsil Office Jand, which hints at the lacks of transparency. The vendor was exceeding 100 years of age. He was mentally and physically incapacitated. The Respondents No, 1 to 6 have acted in a combination to deprive Dost Muhammad Khan of his valuable property and, ultimately deprive the complainant from his heritage. Besides Behram Khan Lamberdar Respondent No, 4, the vendees in one mutation are the identifiers in the other mutation. It is further argued that in order to entitle oneself for the concession of pre-arrest bail one has to prove the case on merits in one's favour and that the case has been registered against him on account of mala fide of the prosecution and the complainant.
Not a single word is available to show that the respondent alleged mala fide on the part of the prosecution or the complainant. The learned counsel for the petitioner submits that on the complaint of the petitioner an inquiry was initiated by the Anti Corruption Establishment against the respondents, it was stopped in consequence of order dated 19.06.2009 passed by this Court in Writ Petition No, 1210 of 2009. The august Supreme Court of Pakistan vide order dated 6.10.2009 passed in C.A.No, 1229 of 2009 ordered the continuation of the inquiry .which ultimately culminated into the registration of the present FIR.
4. The learned counsel appearing on behalf of the respondents contends that besides the mutations in question, 26 other mutations were sanctioned in consequence of the oral sale made by Dost Muhammad Khan deceased, but none except those in favour of Respondents No, 1 to 3 has been challenged by the complainant; that four civil suits are pending relating to the cancellation of the mutations in question. The matter is purely of civil nature. The genuineness or otherwise of the mutations is linked with the fate of the suits. The case being that of further inquiry, the petitioners were entitled to the concession of pre-arrest bail. The sanctioning of the mutations sanctioned in Tehsil Office instead of the Revenue Estate, does not render those illegal. Reliance is placed on "1992 SCM R 1832" titled Hakim Khan Vs. Nazeer. Ahmed Lughmani and 10 others, "2000 SCM R 519" titled Muhammad Ishaq and 2 others. Vs. Ghafoor Khan and another. It is further argued that through reports dated 06.10.2009 and 11.11.2009 the accused have been exonerated of the accusation and that grant of bail is peri materia to an order of acquittal. As an order of acquittal cannot be reversed and conviction cannot be ordered by the appellate Court except in the special circumstances, similarly bail once granted should not be cancelled and Courts have to be reluctant in ordering the cancellation. Reliance is placed on "2008 YLR 2953" titled Abdul Basit Bajwa. Vs. The State and "1992 SCM R 1286" titled Mian Dad vs. The State and another.
5. The Respondents No, 6 and 7 have opted to argue in person. The Respondent No, 6 adopts the arguments advanced by the learned counsel for rest of the respondents. The Respondent No, 7 contends that he has no concern with the entry or sanctioning of the said mutations, he is alleged only to have received Rs, 1,00,000/- (one lac) from the complainant to have the matter hushed up and that the complainant while appearing before the inquiry officer has exonerated him of the accusation.
6. Khawaja Sohail Iqbal, learned Deputy Prosecutor General, supports the petition and seeks cancellation of the order.
7. I have heard the learned counsel for the Respondents No, 1 to 5, Respondents No, 6 & 7 and the learned DPG for the State.
8. The Respondent No, .3 being the relative had taken the vendor to his house to care and help him to lead the last days of his life peacefully. Prima facie this fact shows the circumstances which facilitated the vendees to convince and allure the vendor to give up and alienate his land in favour of the Respondents No, 1 to 3. If it is admitted for the sake of arguments that he had appeared before the revenue authorities and received Rs, 1,75,00,000/- (one crore and seventy five lacs) which is shown to be the total amount of consideration in all the three sales, the source of this money is still obscure. The bank record is not available to show from where it has gushed in. This amount has not been transferred to the vendor. The argument advanced by the learned counsel for the respondents that sanctioning of mutations in the revenue estate is not sine-qua-none for its legality and validity, is of no avail to the respondents. In a situation when the vendor is too old and is allegedly incapacitated mentally and physically both, the sanctioning of the mutation in the Revenue Estate attains real importance. In all the mutations, the vendees and the identifiers have been changing their positions. The judgments cited by the respondents that the Courts have to be slow and reluctant in cancellation of the bails, do not lay down an embargo that bail once granted cannot be cancelled in any circumstances. The Revenue authorities are the Custodians of the property and the record of the property of the public. The dishonesty or the wrong on the part of a custodian has to be dealt more severely and strictly. In grant of bail, the Courts have always tended to show leniency in favour of the public functionaries, It was considered that their abscondance was not feared that they were more respectables than the ordinary citizens in view of the nature of the duties they were discharging. They have deprived themselves of this concession by their conduct and style. The vendor in question being of advanced old age and allegedly mentally and physically incapacitated was in the care and custody of Respondents No, 1 to 3 and at the mercy of Respondents No, 4 to 6. A notional fiduciary relationship had been created between the vendor and the Respondents No, 1 to 3. The said respondents have taken the benefit of this relationship and have transferred the land in their favour against the consideration of Rs, 1,75,00,000/- (one crore and seventy five lacs) which the record does not show to have been paid or received. In such a situation when the vendor was stripped off his property, the Respondent No, 7 came into play to deprive the complainant of any money left in the treasury of the family. There is not a word mentioned in the application suggesting that the complainant or the prosecution are motivated by the mala fides in order to initiate the criminal proceedings and in order to have the instant FIR registered against the respondents. The respondents are not entitled to the concession of pre-arrest bail, which is meant to safeguard the respectable citizens against harassment and humiliation. The order dated 26.04.2010 passed by the Special Judge Anti-Corruption, Rawalpindi granting pre-arrest bail to the Respondents No, 1 to 7 is set-aside. The bail is cancelled.
9. This petition is accented.