Through this single order I propose to decide following 8 Cancellation Petitions moved under Section 497(5), Cr.P.C. wherein the petitioners/ complainants have challenged the orders dated 21.6.2011 and 14.6.2011 whereby pre-arrest bails granted to Respondents Nos, 2 to 4 were confirmed by the learned Additional Sessions Judge, Lahore in case FIR Nos, 434 dated 9.6.2011, 360 dated 19.5.2011, 258 dated 14.4.2011, 259 dated 14.4.2011, 263 dated 14.4.2011,359 dated 19.5.2011, 433 dated 9.6.2011 and 261 dated 14.4.2011 registered under Sections 420, 468 and 471, PPC at Police Station Garden Town, Lahore respectively:--
1. Criminal Misc. No, 8604-BC of 2011. (Muhammad Iqbal Butt Vs. The State & 3 others).
2. Criminal Misc. No, 8605-BC of 2011. (Nabeela Waseem Vs. The State & 3 others),
3. Criminal Misc. No, 8606-BC of 2011. (Muhammad Saeed Vs. The State & 3 others).
4. Criminal Misc. No, 8607-BC of 2011. (Nauman Saeed Vs. The State & 3 others).
5. Criminal Misc. No, 8608-BC of 2011. (Ata Ullah Saleem Vs. The State & 3 others).
6. Criminal Misc. No, 8609-BC of 2011. (Muhammad. Saleem Vs. The State & 3 others), 7 Criminal Misc. No, 8610-BC of 2011. (Muhammad Iqbal Butt Vs. The State & 3 others).
8. Criminal Misc. No, 8611-BC of 2011. (Akeela Saleem Vs. The State & 3 others).
2. Brief facts in order to dispose of this petition (Cr1. Misc. No, 8604-BC-2011) are that the complainant Muhammad Iqbal Butt son of Muhammad Hussain Butt alleged in the FIR that he booked Flat No, 302 measuring 440 square feet in "Ahad Tower" owned by Abdul Ahad Malik, Yousaf Ahad Malik and Riffat Ahad Malik Respondents Nos, 2 to 4 respectively and paid them Rs, 19,00,000/- on 22.2.2005; that Respondents Nos, 2 to 4 agreed to handover the possession in the year 2007 but subsequently it transpired that as the said plaza was constructed illegally and under the direction of Hon'ble Supreme Court of Pakistan, the LDA demolished so many of its stories and the accused with mala fide and playing deception & fraud procured huge amount from the complainant and now when it was asked for the return of said amount, they threatened for dire consequences.
As the allegations in all the above mentioned FIRs are same, therefore, version of the complainant in each FIR need not to be reproduced here.
3. Learned counsel for the petitioners/complainants have vehemently argued that although the respondents were not owner of the plot rather they actually got possession of the portion of said plot belonging to the LDA/Provincial Government, advertised the "Ahad Tower Scheme" in such a manner that people including the petitioners and so many others were attracted as they were shown the imaginary plans and fake approval orders by the concerned authorities thus they were deceived and paid huge amounts to the accused/respondents; that it was for the first time when it came into light when case of high rising buildings constructed at Lahore was taken up by the Hon'ble Supreme Court of Pakistan and a report was submitted by Mr. Justice (R) Riaz Kayani showing that respondents were not authorized by any of the Agency/LDA but they Without any lawful permission constructed Ahad Tower up to the 10th floor, which otherwise was dangerous; that petitioners when came into the knowledge of these actual facts, they approached the respondents and demanded back their amounts, but the respondents not only refused but threatened for dire consequences. Learned counsel for the petitioners further argued that prima- facie offence under Sections 468, 471, PPC read with 420, PPC is made out as the respondents deceived the petitioners by showing them fake and forged plans allegedly sanctioned by the competent authorities; that the learned Additional Sessions Judge while allowing the petition for pre-arrest bail to the respondents only referred that registered Sale Deeds exist in favour of the petitioners and it was just a civil liability as there was a contract existing thus found that it was a case of further inquiry. Learned counsel argued that settled principles for grant of pre-arrest bail i,e, the mala fide on the part of complainant or police was missing nor it was agitated and discussed by the learned Additional Sessions Judge and in a routine and mechanical manner pre-arrest bail was granted to the respondents. Learned counsel for the petitioners while referring "Rana Ishtiaq Mahmood and 2 others versus The State (1995 P.Cr.LJ. 1873), "Usman Noor versus The State and another" (2011 YLR 686), 'Nazar Gui versus Islam and 3 others"' (1998 SCMR 1223), 'Muhammad Tariq versus Additional Sessions Judge, Dunyapur and 3 others" (2012 P.Cr.LJ 285), 2011 MLD 622, "Zulfiqar Ali Baloch versus The State and another (2012 P.Cr.LJ. 333), 'Muhammad Amir versus Ghulam Hussain" (2011 MLD 790) and "Shafiq versus The State through Additional Advocate General Peshawar, and another" (2012 YLR 27) as well as documents especially report submitted by Mr. Justice (R) Riaz Kayani, report of Hassan Nawaz Tarar, the Director General LDA, letter by the Director Commercialization LDA, Lahore whereby it was sanctioned for construction of two basements and lower ground floor on the disputed site but the respondents without any lawful justification constructed the building up to 10th floor. He also submitted different documents including broachers publicized by the respondents to deceive the public whereby petitioners and others were attracted. Learned counsel for the petitioners further argued that petitioners although when demanded back their money were refused as well as threatened by the respondents but at the same time some influential people whose names were mentioned by the learned counsel which need not to be referred here, have been returned back their amount paid. Contend that in view of the bail granting order no proper investigation in this case was conducted and prosecution was deprived of the opportunity of investigation as well as recovery in this case. On the basis of case law as well as documents mentioned above prayed that pre-arrest bail granted to the respondents be recalled.
4. Conversely, learned counsel for the respondents while opening the arguments prayed that this bail application be adjourned as matter between the respondents and LDA is still pending before the Hon'ble Supreme Court of Pakistan, as the LDA has raised certain objections about some of the portions of the building/site which allegedly was possessed by the respondents but do not belong to them; that status-quo is directed to be maintained by the Hon'ble Supreme Court of Pakistan, therefore, respondents are not in a position to further construct and handover the possession of the different portions to different people including the petitioners. It was further argued that respondents are actually owner in possession of building Nos, 102 and 103, Garden Town, situated at Kalma Chowk by the name & style "Ahad Tower" and the plan was duly sanctioned by LDA, constructions were made up to the level of 10th floor and petitioners/complainants and other people purchased the same - after execution of duly registered documents/deeds; that unfortunately due to high rising building case taken up by the Hon'ble Supreme Court of Pakistan, five stories of the building had to be demolished. It was argued that all the building plans whatsoever were duly sanctioned thus the respondents or anybody on their behalf never forged any document nor displayed the same to attract the petitioners or any other person. Learned counsel argued that offences alleged are not attracted in the circumstances of the case and even otherwise Offences are not falling within the prohibitory clause of Section 497, Cr.P.C.; that the petitioners have been failed to make out any ground for cancellation of bail as such concession granted by the learned Additional Sessions Judge was never misused by them; that investigation in this case =has been completed, challan has been submitted, hence, at this stage no ground for cancellation is available. While relying on 'Muhammad Ryas versus Abdul Leif and another" (2010 MLD 1530). "Mst. Naeem Akhtar versus Wakeel Badsha and another" (2011 P.Cr.LJ 886), "Sohail Anjum versus Zulfiqar and another" (2011 P.Cr.LJ 888), "Salman Ira= versus Ahmed Mian and another" (2010 P.Cr.LJ 672), "Rehmatullah versus The State and another" (2011 SCMR 1332), 'Muhammad Ashraf Asim versus Squad Ahmad and others" (2011 SCMR 1725), 'Asmatullah versus The State and others"
(PLD 2011 SC 178), "Syed Muhammad Firdaus and others versus The State" (2005 SCMR 784), 'Muzaffar Iqbal Versus Muhammad Imran Aziz and others" (2002 PSC (Crl.) 777), 'Mst. Irshad Begum versus Muhammad Afzal and another" (1985 SCMR 1691), 'Muhammad Sadik and others versus The State" (1980 SCMR 203), "Maj. (R) Ijaz-ulHaq versus Tariq Nazir Butt and The State" (NLR 2006 Criminal 531) and 'Akhlaq Hussain Kayani versus Zafar Iqbal Kiyani and others" (2010 SCMR 1835) prayed that this petition be dismissed.
5. Learned Deputy Prosecutor General, however, supported the arguments advanced by learned counsel for the petitioners.
6. I have heard the learned counsel for the parties at length and have gone through the record.
7. All the petitioners/complainants in their respective FIRs have alleged and it is not denied by Respondents Nos, 2 to 4 that they booked different portions/flats/shops in the proposed "Ahad Tower", which according to Respondents Nos, 2 to 4 was under the process of construction having been duly approved by the LDA. The mailer of high rising buildings in Lahore was taken up by the Hon'ble Supreme Court of Pakistan and report by Mr. Justice (R) Riaz Kayani was submitted before the Hon'ble Supreme Court of Pakistan wherein it was specifically recommended:-- "The perusal of the report being submitted by us, we are not in a position, in view of its contents mainly gathered by the observations of the agency, our own inspection and report of the member to give our blessings for the completion of the plaza, to the contrary we see eye to eye with the note reproduced above that beyond 5th floor, at least, the plaza has to be demolished. Particularly, keeping in view the sight where it is built being congested on two sides with traffic which even beyond midnight can be said to be enormous in nature. The responsibilities upto 5th floor would also solely fall upon the shoulders of the HLDC."
8. Subsequent to the submission of above referred report by Mr. Justice (R) Riaz Kayani, LDA under the direction of Hon'ble Supreme Court of Pakistan demolished 6th to 10th floors of "Ahad Tower" and due to that reason all the petitioners and other people who also booked different portions in the said building started approaching the respondents as they had paid huge amount/investments to them. During the inquiry conducted by Hon'ble Supreme Court of Pakistan different reports were submitted, one of the reports dated 21.7.2007 was prepared by Hassan Nawaz Tarar, Director General, LDA. In the said report in Paragraph No, 23 he reported:-- "PRESENTSITE POSITION.
Building structure completed comprising: 0 3-Basements 0 Lower Ground Floor 0 Ground Floor 0 1st to 10th Floors MAIN VIOLATIONS:
(i) constructed one additional basement, against the sanction of two basements reserved for parking.
(ii) HLDC recommended the Building plans upto 5th Floor subject to certain conditions. However, LDA sanctioned the plans to the extent of plinth level. The construction above the plinth level upto 10th Floor is illegal.
(iii)Excess coverage has been made on each floor resulting in substantial reduction in parking space.
(iv)Structural calculations not provided.
(v)EPA certificate not provided.
(vi)Design has been changed. "
Learned counsel for the petitioners also referred another Letter No, DTP(C), LDA, Lahore/380 dated 18th of December, (year not legible), photocopy of which is produced, which was sent to Abdul Ahmad Malik & others/respondents wherein it was observed:-- "Sub: APPROVAL OF BUILDING PLAN OF PLOT NOS. 102 & 103 GARDEN BLOCK, NEW GARDEN TOWN MEASURING 7-K 4-M & 187-SFT.
Ref: Your application submitted for the consideration of a commercial building on the above subject plot.
The building plans were placed before the High Level Design Committee in its meeting held on 11.12.1997 and as per recommendations of High Level Design Committee, the building plans for construction of Two Basements reserved for Parking and Lower Ground are sanctioned subject to the following conditions:
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14. ---- The Broachers publicized by the respondents in respect of Ahad Tower, if seen, very attractive photographs as well as description of property with its specialties are shown. For example under the heading of "Excellent Shops" it was displayed:-- "The Lower Ground, Ground Floor. 1st-Floor (Mezzanine Floor) and 2nd Floor (Paradise Floor) are particularly designed to provide maximum space to shop owners and the customers. Spacious shops at these floors accommodate the latest business trends. Customers can have equally convenient approach to every corner of the floors. Sixteen feet wide corridor and vast walking area giving a touch of splendor and elegance to the shopping environment.
Shopping environment is in your favour. Win the hearts of the customers and rule over business world."
You are lucky! You are surrounded with the leading business streets, most modern markets and posh residential areas of the city. You are so centralized, so accessible, so transparent, so clear and so near that you can be located in a blink of eye. Yes., now you are the ultimate choice of the customers.
BE THE LEADER OF ANOTHER MARKET OF COMPUTERS, MOBILES AND ELECTRONICS."
Under the heading of "Stylish Offices" following wording was publicized: "Floor Nos, 7, 8'and 9 are allocated exclusively for offices. Floor No, 7 is numbered as 101, Floor No, 8 is numbered as 201 and Floor No, 9 is numbered as 301. All the offices are designed so intelligently that daylight and environmental. beauties can be enjoyed, when you feel like that.
The offices are ideal for the business related to Mobiles, Computers, Electronics, Pharmaceuticals, Air Companies, Traveling Agencies, Clearing Agencies, Insurance Companies and Import Exports.
Enjoy the true business environment."
And at another place under the heading of "Roof Top" it is publicized:-- "Roof top of the last floor is allocated for amusement and pleasures of life. A swimming pool along with lush green gardens and a Revolving Restaurant is designed on this spacious area. At the same place, an Open Air Theater and Food Courts will also share to refresh yourself while walking & Shopping on different floors.
Besides, beautifully designed, an extraordinary play area is provided for your children and old- aged parents, at the same rooftop. In the provision of these activities, you would love to spend your best time and worth remembering moments of life, with your family, friends and favourite ones. {{URDU TEXT}}
9. During the investigation, if the record is seen, except oral assertions the respondents never produced any document before the Investigating Officer if the tower in question was constructed under any approved plan. As far as the plans are concerned, whatever was tried to be proved before the Court thus have been found during the inquiries sanctioned only up to the level of 1st Ground Floor and basement. The learned Additional Sessions Judge while deciding bail application granted pre-arrest bail to the respondents in a casual manner without discussing any aspect as mentioned above and while observing that as there were registered sale deeds existed in favour of the petitioners/complainants by the Respondents Nos, 2 to 4 and it was just a civil liability granted pre-arrest bail vide impugned order without adverting to the settled law on this subject.
Admittedly, It has so far been settled that pre-arrest bail is an extra ordinary remedy which can only be granted in extra ordinary circumstances as so far have been settled by the Hon'ble Supreme Court of Pakistan. Reference in this respect can be seen from "Rana Muhammad Arshad versus Muhammad Rafique and another (PLD 2009 Supreme Court 427) wherein their Lordships while discussing the precedent law since 1949 when this Court in Hidayat Ullah Khan's Case (PLD 1949 Lah. 21) discussed the settled principles for grant of pre-arrest bail and while referring the following judgments "The Crown v. Khushi Muhammad" (PLD 1953 F.C. 170), 'Muhammad Ayub v.
Muhammad Yaqub" (PLD 1966 SC 1003), "Sadiq Ali v. The State" (PLD 1966 SC 589), "Zahoor Ahmad v.
State" (PLD 1974 Lah. 256), 'Muhammad Anwar. Samma & another v. The State" (1976 SCMR 45), 'Murad Khan v. Fazal-e-Subhan & another" (PLD 1983 SC 82), 'Muhammad Safdar and others v. The State" (1983 SCMR 645), "Zia-ulHassan v. The State" (PLD 1981 SC 192) and 'Mst. Qudrat Bibi v.
Muhammad Iqbal and another" (2003 SCMR 68) summarized the following principles/conditions to be kept in mind by a Court prior to allowing pre-arrest bail to an accused person:-- "(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of Section 497 of Code of Criminal Procedure i,e, unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d)not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance, i,e, the Court of Session, before petitioning the High Court for the purpose."
10.If impugned orders passed by the learned Additional Sessions Judge whereby Respondents No, 2 to 4 were allowed pre-arrest bail, are seen whereby it was observed that the petitioners/complainants in their respective case tried to convert civil litigation into criminal just to pressurize the respondents/accused with malafide is just an observation without any foundation. If whole of the records as discussed above is seen, firstly, respondents were not having any sanctioned plan to construct such a high rising building up to 10th floor, whatever the sanctions were granted, those were only for Ground Floor and Basements and even otherwise, their title over the disputed site was also under the shadow and further they were never joined in the investigation by the Investigating Officer except that a statement of one of the respondents was submitted in writing. The pre-conditions as discussed above for grant of pre-arrest bail were not made out in these circumstances, therefore there was no justification for grant of pre-arrest bail to the respondents.
11. So far the argument advanced by learned counsel for the respondents that the respondents have not misused the concession is concerned, the question of misusing only can be seen if a person/accused C first is entitled for any such concession. The concession of pre-arrest bail in routine cannot be allowed until and unless the pre-conditions settled by the Hon'ble Supreme Court of Pakistan, as mentioned above, are made out.
12.It is also to be kept in mind that these petitions for cancellation were filed on 13.7.2011, same were admitted for regular hearing on 27.9.2011 and since then these were being adjourned mostly on the prayer made by the respondents on one or the other pretext.
13.Keeping in view the above facts and circumstances, as none of the conditions was available and prima-facie offences alleged against the respondents were made out coupled with the fact that prosecution was also deprived of the opportunity to investigate the respondents, hence, these petitions are allowed. Bail granting orders passed by learned Additional Sessions Judge, Lahore are hereby recalled.