SAGHEER AHMAD QADRI, J.---Petitioner Muhammad Sarwar seeks pre-arrest bail in case F.I.R. No. 43 of 2010 dated 20-3-2010 under sections 420, 467, 468 and 471, P.P.C. Registered at Police Station Civil Lines District Sahiwal.
2. Brief facts in order to dispose of this bail application are that Javed Iqbal son of Noor Ahmad complainant lodged the above mentioned F.I.R. While mentioning that he had long intimacy with Muhammad Sarwar petitioner, who. In order to sale out a plot measuring 5 marlas, in the presence of witnesses on 30-9-2005 executed an agreement and received Rs.1,00,000 that subsequently after about 10 months latter he further received Rs.30,000 that subsequently the plot was not transferred and when father of the accused/petitioner died, it transpired that a case of fraud and forgery vide F.I.R. No. 195 of 2009 was registered against the accused-petitioner; that subsequently.
Complainant demanded transfer of the plot which was refused by Muhammad Sarwar accused- petitioner; that although neither the accused-petitioner was owner of the plot nor was authorized to sell out the same hence by preparing forged document he received above mentioned amount of Rs.1,30,000 by committing fraud and forgery etc. On this report instani case was registered.
3. Learned counsel for the petitioner contends that allegations against the petitioner are false, he has not committed any offence; that admittedly petitioner entered into an agreement to sell of a plot measuring 5 marlas, which was owned by his sons, who had authorized him to sell it out; that there is a delay in lodging the F.I.R. Which is unexplained; that petitioner even now is ready to transfer the plot in question to the complainant but he due to ulterior motives is not ready to get transferred the disputed plot in his name as he is demanding more wide face of the plot which according to the specification and entitlement of the petitioner is not possible that no forgery whatsoever was ever committed by the petitioner as he entered into an agreement to sell which is a genuine document, however, if at all it is taken that petitioner was not authorized to sell out the plot owned by his sons, even then, offence of cheating as defined under section 420 is made out which is bailable offence and that petitioner has joined the investigation and is no more required by the police. Prayed that pre-arrest bail already granted to petitioner be confirmed.
4. Learned counsel for the State has, however, frankly conceded before the Court that offence under sections 468 and 471 is not made out and if at all it is a case of cheating punishable under section 420, P.P.C.
5. Learned counsel for the complainant, on the other hand, has vehemently opposed this bail application on the ground that petitioner, knowingly that he was not owner of the plot in question, entered into an agreement to sell with the complainant, therefore, document/lqrar Mama in these circumstances is a forged document; that this forged document was used by the petitioner to deceive the complainant, therefore, offence under section 471, P.P.C. Is also attracted in the circumstances of the case and that no mala fide on the part of the complainant or police is shown which is a pre-condition for the grant of bail. Prayed that this bail application be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and perused the record.
7. Admittedly, petitioner entered into an agreement to sell vide agreement/lqrar Nama, photocopy of which is placed on this petition at page 20. This document reads that Muhammad Sarwar son of Ali Muhammad' petitioner has sold out the plot measuring 5 marlas situated at Kila No. 4, Chak No. 86- GB, Sahiwal in consideration of Rs.45,000 per marla to Javed Iqbal son of Noor Ahmad the complainant. It was also admitted that he has received Rs.1,00,000 and he would transfer the plot after one year. Admittedly, it is a document executed by the petitioner and signed by him. There is no forgery whatsoever shown or apparent on record committed by the petitioner in preparation of this document. The definition of "Forgery" is provided under section 463, P.P.C. Which reads as under:-- Forgery. Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter, into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
The making of false document is defined in section 464, P.P.C, which is hereby reproduced as under:- "Making a false document. A person is said to make a false document:-- First. Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, singed, sealed or executed, or at time at which he knows that it was not made, signed, sealed or executed; or Secondly. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or inoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document of the nature of the alteration."
8. If the above mentioned definition of "forgery" and "making of false document" is seen, the Iqrar Nama/agreement to sell does not fall within any of the above mentioned definitions. It is a document which was written and executed by petitioner to sell a piece of land to complainant.
None of the parts of that document is forged nor it falls within the definition of false document. At the best it can be said that although the land in question which he agreed to sell to the complainant, was not owned by him rather his sons and he was not authorized to enter into such an agreement to sell. Learned counsel for the petitioner during his arguments has referred a document i.e. Special Power of Attorney and subsequently executed a General Power of Attorney by sons of the petitioner in his favour, whereby he was authorized to do so. Anyhow, if at the best all the facts and circumstances of the case are taken, petitioner, prima facie, can be attributed for the commission of an offence under section 420, P.P.C. As he allegedly cheated the complainant and dishonestly induced for delivery of property i.e. The cash Rs.1,00,000. The offence under section 420, P.P.C. In these circumstances is a bailable offence. It is worth-mentioning here that even during the pendency of this bail application the petitioner offered to get transferred the plot in question in the name of the complainant but he perhaps under some misconception or reasons best known to him was not ready to accept that offer. In these circumstances, the case of the petitioner requires further probe falling under section 497(2), Cr.P.C. No doubt this Court as well as the Hon'ble apex Court in so many judgments has observed that mala fide on the part of the complainant and police is to be taken as a pre-condition for the grant of pre-arrest bail and this mala fide can be seen from the facts and circumstances of each and every case. Levelling of allegation against a person and registration of a case on the basis. Of those allegations and facts by police under offences which do not attract itself make out a case of mala fide on the part of complainant and police, which factor is available on record in this case as discussed above. In these circumstances, petitioner's interim pre-arrest bail already granted to him is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of learned trial Court within one week, otherwise, this bail shall be deemed as dismissed.