Criminal Miscellaneous No,186-M of 2012 ' IQBAL HAMEED-UR-RAHMAN, C.J.---Through the instant application the applicant/complainant seeks permission to place on record additional documents annexed with the instant criminal miscellaneous. The learned counsel for the petitioner as well as learned Deputy Attorney-General have no objection if the instant application is allowed and additional documents are placed on record. Order accordingly.
' The instant Criminal Miscellaneous is allowed and additional documents are placed on record.
Criminal Miscellaneous No,187-M of 2012 ' Dispensation sought for is allowed subject to all just and legal exceptions. C.M. Stands disposed of.
Main Criminal Miscellaneous Petition ' Petitioner Muhammad Khalid son of Ahmed Bukhsh seeks pre-arrest bail in case F.I.R. No,37 dated 27-1-2012, registered under sections 420, 468, 471, P.P.C., at Police Station, Kohsar, District Islamabad.
2. The prosecution story, in brief, as narrated in the F.I.R. Is that the petitioner is the real brother of the complainant and the petitioner in connivance with his co-accused Manzoor Elahi has prepared forged documents, showing himself to be the owner of the company B&B Oil Mills and fraudulently got transferred the shares and other documents concerned with shares of B&B Oil Mills w.e.f, 8-2- 2011, showing that all the shares have been transferred in the name of the petitioner. They also posed themselves as Director of the Company and Company Secretary by impersonation.
Therefore, the petitioner along with his co-accused has committed fraud, forgery and impersonation for the purpose of misappropriating the shares of the company, hence, the instant case.
3. Learned counsel for the petitioner has opened the case of the petitioner while reading the contents of the F.I.R. And argued, at length that the F.1.R. Against the petitioner has been lodged with mala fide and ulterior motives by the complainant; that no alleged forged documents were recovered by the Investigating Officer from the alleged place of occurrence; that the assets of the company were pledged with Muslim Commercial Bank (MCB) and on committing default by the company a recovery suit of Rs,3943244.78 along with mark-up was filed by the MCB under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and subsequently on 30-12-2002 MCB entered into an agreement to sell of the mortgaged property with Messrs B&B Oil Mills/defendants against consideration of Rs,97,00,000 which agreement was also accepted by the Board Resolution nominating the petitioner as attorney of defendants to deal with the Banking Courts; that on 21-2- 2003 the complainant, who was appointed as counsel by the petitioner, got published the said sale agreement; that on 29-7-2003 the complainant filed, application under Order I, Rule 10, C.P.C. On behalf of the petitioner before the Banking Court which was dismissed and review petition was also dismissed; that decree for sale of mortgaged property was passed in favour of MCB which, was not assailed by the judgment debtors and notice under Order XXI, Rule 66, C.P.C. For public auction of mortgaged property was issued, thereafter Sale Proclamation was publi4shed by the Court Auctioneer against the same; that the petitioner filed objection petition which was allowed and the petitioner deposited Rs,39,43,244.78 in the executing Court; that on 29-6-2005 the complainant filed an application under section 151, C.P.C. For the withdrawal of decretal amount Rs,39,43,244.78 in the Banking Court which was allowed without any notice to the petitioner, resultantly again the auction schedule was published, then on the acceptance of Writ Petition No,2619 of 2005 filed by Shamim Ahmed Rizvi the application filed by the complainant was dismissed vide order dated 23- 10-2007 and the decretal amount was disbursed to the decree holder-Bank; that further the petitioner deposited an additional amount of Rs,17,71,449.21 which was duly recorded by the executing Court and confirmed the payment of decretal amount; that the complainant then entered into an illegal agreement with Shamim Ahmed who was the petitioner in the said writ petition before the Hon'ble Lahore High Court, and on the basis of which the complainant filed an application claiming himself to be the owner of the mortgaged property which was dismissed; that thereafter due to the intervention of the elders of the petitioner and the complainant the dispute was settled and a Promissory Note was reduced into writing by the petitioner in favour of the complainant, whereupon Writ Petition No,610 of 2009 filed by the petitioner was accepted and in result thereof the petitioner filed execution petition No,14-S of 2009 for transfer of 100% shares in his name; that on 10-6-2010 Sarhad Development Authority issued clearance certificate in favour of the petitioner after receiving all the dues which was endorsed by the Board Resolution declaring the petitioner entitled to 100% shares of the company by submitting Annual Returns Form "A" on 3- 11-2011; that civil litigation is pending between the parties since long and prosecution has coloured a civil matter into criminal one; that the petitioner has been involved in this case inala fidely on the basis of personal grudge and enmity; that nothing is to be recovered from the custody of the petitioner and sending him behind the bars would not serve any useful purpose, particularly when he consistently is joining the investigation during the pendency of pre-arrest bail before the learned Additional Sessions Judge, Islamabad as well as before this Court; that pre-arrest bail is an extraordinary discretionary relief which is extended to the innocent persons and the petitioner is a respectable citizen of the country and his arrest would tantamount to humiliation and maltreatment amongst the business community resulting into causing an irreparable loss to the petitioner; that offence under section 420, P.P.C. Is bailable, whereas, although the offences under sections 468 and 471, P.P.C. Are non-bailable yet the maximum punishment provided for the said offences is less than 10 years, as such, they do not fall within the ambit of prohibitory clause of section 497, Cr.P.C.; that the instant F.I.R. Has been lodged with an inordinate delay of eleven months and ten days which shows deliberation on the part of the complainant; that a complaint of similar allegations as alleged in the instant F.I.R. Had already been filed before SECP which has been decided and the petitioner could not be subjected to double jeopardy by entangling him in the instant case; that the petitioner has already joined the investigation and is not required by the police for further investigation; that the case of the petitioner is that of further inquiry and the guilt of the accused is to be determined at the time of trial. Hence, the petitioner is entitled to the concession of pre-arrest bail. Learned counsel has relied upon the cases of Zafar Iqbal v.
Muhammad Anwar and others (2009 SCM R 1488), Muhammad Yaqub v. SHO and others (1997 M LD 2097) and Dr. Muhammad Akbar Pasha v. The State (2010 M LD 1096).
4. On the other hand, learned counsel for the complainant also gave length to his arguments by contending that the petitioner has shown himself to be holder of 100% shares in B&B Oil Mills and submitted Form-29 through Manzoor Elahi who is not the company secretary and is alleged to have impersonated himself as company secretary, as such, he is co-accused along with the petitioner in the instant case; that the pre-arrest bail of co-accused Manzoor Elahi has also been dismissed by the learned Additional Sessions Judge, Islamabad and he is absconder since then; that the petitioner, in the list of Form-29 provided by him, has shown himself to be holder of 997500 shares and his son as holder of 2500 shares; that co-accused Manzoor Elahi was restrained by the Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No,106 of 2010 vide order dated 8-6-2010 not to interfere in the affairs of the company; that the police fully facilitated the petitioner as after two months of registration of the F.I.R. The petitioner filed pre- arrest bail and police did not arrest him during this period; that even after the dismissal of petitioner's pre-arrest bail by the learned Additional Sessions Judge, Islamabad the police did not bother to arrest him; that the co-accused Manzoor Elahi resigned from job on 9-3-2009; that the petitioner filed writ petition for quashing of instant F.I.R. Which was dismissed by this Court vide order dated 23-2-2012; that granting of pre-arrest bail is an extra ordinary discretionary relief which is only extended to the innocent persons but the petitioner has been declared guilty of the offences charged with; that the cases referred to by the petitioner have already been decided, as C.S. No,158 of 2009 was dismissed vide order dated 3-5-2010 and C.S. No,2526 of 2008 for specific performance filed by the petitioner was also dismissed by the Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi vide order dated 3-5-2010; that in C.S. No,477 of 2001 filed in Haripur by the petitioner ex parte decree without impleading the complainant was obtained by the petitioner against the complainant which was set aside subsequently on application under section 12(2), C.P.C. Filed by the complainant; that by concealment of facts the petitioner filed execution petition in another Court which was also dismissed; that after failure of the petitioner to establish himself to be the owner of the company, he submitted Form-29 before SECP through his co- accused posing himself to be the owner of the company; that the complainant got the possession of the company B&B Oil Mills after paying rupees twelve lacs; that as per the agreement dated 21- 1-2003, 21% shares have been transferred to the complainant; that as per the orders of the High Court, the complainant obtained 79% shares of the company which have never been challenged and has attained finality; that the administrator appointed by this Court filed Form-29 according to which the complainant is holding 997,500 shares; that the father of the petitioner and the complainant has submitted his affidavit for effecting the compromise between them in Islamabad High Court, Islamabad; that cheques were paid by the complainant in pursuance of the said agreement; that the complainant is holder of 99.7% shares in the company; that no mala fide on the part of prosecution has been shown. Hence, pre-arrest bail application of the petitioner be dismissed.
5. Learned Deputy Attorney-General on his turn contended that the scope of pre-arrest bail is very limited; that the petitioner fled away from the Court of learned Additional Sessions Judge, Islamabad after dismissal of his pre-arrest bail; that the petitioner does not deserve any leniency due to his conduct.
6. Arguments of learned counsel for the petitioner as well as learned counsel for the complainant and learned Deputy Attorney-General heard. Record perused.
7. Admittedly, the petitioner and the complainant are real brothers who engaged themselves in business and subsequently established a company in the name and style of Messrs B&B Oil Mills Private Limited. The said company had been duly registered and thereafter started functioning and remained in production for some time but subsequently differences surfaced between the brothers i.e, the petitioner and the complainant and resultantly, they entered into civil litigation as is reflected from the arguments advanced by both the sides i.e,, the petitioner and the complainant as well as the documents attached with this petition and also filed by the complainant through Criminal Miscellaneous No,186 of 2012. It is apparent that both of them thereafter entangled themselves into a long civil litigation which also led the company to become defaulter of Muslim Commercial Bank which had advanced finance facility to their company (Messrs B&B Oil Mills Private Limited) against mortgage of property. The suit filed by MCB for recovery of the said finance facility had been decreed in favour of the Bank and consequently execution petition had been filed.
During the litigation, with the Bank the parties had also entered into agreements for getting the mortgaged property redeemed and allegedly according to the agreements payments have been made by the petitioner to the complainant as well as for the redemption of the mortgaged property, therefore, it is an admitted fact that the bone of contention between the parties is civil litigation on account of their investment made in the business of the company (Messrs B&B Oil Mills Private Limited). Both the sides have produced a large number of documents i.e, agreements and judgments of High Courts, Banking Court as well as Civil Courts. Taking the same into consideration prima facie, mala fide on the part of the complainant cannot be ruled out for involving the petitioner in the instant case. It appears that the complainant is now trying to manoeuvre to convert the civil litigation into a criminal one, in pursuit of their enmity towards each other, with malice. Further, the forgery of the alleged documents yet to be determined during investigation and trial. In such like circumstances, the apprehension of the petitioner that he has been falsely implicated in the instant case cannot be ruled out which would result in humiliation and irreparable loss to his reputation which entitles the petitioner the grant of extra ordinary discretionary relief of pre-arrest bail. Even otherwise, sections 420/471, P.P.C. Are bailable while offence under section 468, P.P.C. Though non-bailable yet does not fall within the ambit of prohibitory clause. Moreover, inordinate and unexplained delay of more than eleven months in lodging of the F.I.R. Also cannot be overlooked while confirming the ad-interim pre-arrest bail of the petitioner.
8. In the above perspective, ad interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs,5,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.