Through instant petition, the petitioner seeks post arrest bail in case FIR No, 133/2010 dated 24.02.2010 offences under Sections 420, 468 & 471 of, PPC registered at Police Station Kotwali, District Jhang on the complaint of Mulazim Hussain, complainant.
2. As per brief allegations levelled in the FIR, the petitioner executed an agreement to sell in respect of agricultural land measuring 111-Kanals situated in Chak No, 441/"Jeem Bay" Tehsil & District Jhang. It is also alleged by the complainant in the above FIR that the petitioner was not in-fact owner of the land in question and he committed fraud and forgery with the complainant, hence the above mentioned FIR was registered against the petitioner.
3. The petitioner was arrested in this case. The petitioner applied for grant of post arrest bail in the Court of learned Judicial Magistrate 1st Class, Jhang but the same was dismissed vide order dated 28.04.2011. He, thereafter, moved a petition for grant of bail after arrest, in the Court of learned Additional Sessions Judge, Jhang but the same was also dismissed vide order dated 25.08.2011. The petitioner has now filed the instant petition for post arrest bail in this Court.
4. It is contended by the learned counsel for the petitioner that no forged document was prepared by the petitioner; that it was clearly mentioned in the agreement to sell that the land in dispute is owned by the Provincial Government and at the time of execution of said agreement, the petitioner was not owner of the said land and further that the petitioner will get the process completed regarding the allotment of proprietary rights in respect of the above mentioned property; that no forged document was prepared by the petitioner, therefore, the offences mentioned in the FIR are not attracted against the petitioner; that it was a case of civil nature, which has been given the colour of a criminal offence; that civil suit between the parties is pending adjudication before the civil Court Jhang; that co-accused of the petitioner namely Abid Hussain and Sher Muhammad have already been granted bail; that a subsequent agreement to sell was also executed between the petitioner and the complainant, according to which, on 26.11.2009 an agreement was executed between the parties and it was settled that the land in question will be sold by one Abid Hussain and Sher Muhammad and the amount of the complainant will be paid after sale of land in question; that case of the petitioner is one of further inquiry; that the offences mentioned in the FIR, do not fall within the ambit of prohibitory clause of Section 497 of, Cr.P.C. Hence this petition may be accepted.
5. On the other hand, the learned DPG assisted by the learned counsel for the complainant has vehemently opposed this bail petition on the grounds that the petitioner is specifically nominated in the FIR; that the petitioner has defrauded the complainant; that the prosecution witnesses have fully supported the case of prosecution in their statements recorded under Section 161 of, Cr.P.C. that the petitioner was found guilty during investigation; that the petitioner has later on appointed his wife as a special attorney in respect of the land in question which shows mala fide on the part of the petitioner; that the petitioner also lodged an FIR against the complainant under Section 379 of, PPC. He has placed reliance on cases reported as 'Mushtaq Ahmad Solangi and another versus The State" (2009 P.Cr.L.J. 732), 'Muhammad Aslam versus Muhammad Feroze and others" (2008 SCM R 807) and "Riaz Ahmad versus The State and another" (2009 P.Cr.L.J.142). He, therefore, prayed that this petition may be dismissed.
5. Arguments heard. Record perused.
6. According to the contents of the FIR, an agreement was executed between the complainant and the petitioner regarding sale of 111-kanals of agricultural land situated in Chak No, 441/"Jeem Bay"
Tehsil & District Jhang. It is claimed by the complainant that the petitioner had shown himself as owner of the suit land whereas the land in question was owned by the Provincial Government and thereby he has defrauded the complainant. The agreement to sell executed between the petitioner and the complainant has been placed on record by the petitioner. It is clearly mentioned in the said agreement that the petitioner was not owner of the land in question. It was also described in the said agreement that Provincial Government is owner of the land which was subject matter of the agreement. The complainant knowingly executed the above mentioned agreement that the petitioner was not owner of the land in question. Copy of register "Haqdaran" Zameen has also been placed on record, in which the Provincial Government has been shown as owner of the land in question and the petitioner is shown in possession of the same, therefore, prima facie it appears that no forgery was committed at the time of execution of agreement to sell, as such attraction of Section 468 of, PPC in this case requires further probe. The offences under Sections 420 & 471, PPC are bailable. Even otherwise offence under Section 468, PPC does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. and grant of bail in such like cases is a rule while refusal is an exception. The second agreement was also executed between the petitioner and the complainant, according to which the disputed land was to be sold by Abid Hussain etc., and thereafter the sale consideration paid by the complainant was to be handed over to him. A civil suit in respect of land in question has also been filed which is statedly pending in the Court of learned Civil Judge, Jhang. It will be seen after recording of evidence as to whether any fraud was committed or not. The judgments cited by the learned counsel for the complainant are distinguishable from the facts of the present case.
7. In view of the above discussion, the instant bail petition is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,3,00,000/- (Rupees Three Hundred Thousand Only) with one surety in the like amount to the satisfaction of the learned trial Court.
8. It is however clarified that the observations made in this order are tentative in nature and shall cause no prejudice to the case of other party at the time of final adjudication of the case before the learned trial Court.