ORDER SHAHID HAMEED DAR, J. - Through this application under Section 497(5), Cr.P.C., the petitioner seeks cancellation of bail allowed to respondents No. 2 and 3 vide order dated 17.06.2010 passed by learned Addl. Sessions Judge, Lahore in case F.I.R. No. 271/2010, dated 05.06.2010 under Sections 506, 427, 354, 452, P.P.C., registered at Police Station, Bhatti Gate, Lahore on the complaint of the petitioner.
2. Precisely, the prosecution case is that the petitioner complainant struck a deal with Javaid Butt, respondent No. 2 for purchase of a house on mortgage against a sum of Rs. 1,00,000/-; she paid him Rs. 60,000/- and for payment of rest of the amount she asked the respondent No. 2 to chalk down an agreement at the police station; she shifted her belongings and house-hold articles to the said house after payment of the said amount to respondent No. 2 but he despite having received the said amount threatened her that he would neither return the said amount nor would let her live in the said house; thereafter he being armed with a pistol trespassed into the house, maltreated her and other members of her family, criminally intimidated the petitioner threw her belongings outside the house and locked it; the house-hold articles of the petitioner- complainant lay on the road side and some of it have been smashed and damaged by the respondent No. 2.
2. Learned counsel for the petitioner contends that respondents No. 2 and 3 have been allowed bail before arrest by the Addl. Sessions Judge without caring for the condition precedent for grant of such relief vis-a-vis, the malice and ulterior motive of the complainant or that of the police which lacked in the instant case; respondent No. 2 is specifically nominated in the F.I.R, with a role of having committed; a non-bailable offence in terms of the details mentioned in. The F.I.R., whereas, respondent No. 3 was nominated; by the complainant through a supplementary statement; and that both of them being armed had trespassed into her house, violated her valid possession, damaged and snatched her house-hold articles, threw it outside the house and applied their on lock on the house by extending threats to the petitioner-complainant; the impugned order passed by the learned Addl. Sessions Judge militates against the settled principles of dispensation of criminal justice and is liable to be set aside; lastly contends that the respondents-accused have misused the' concession of bail by causing the abduction of son of the petitioner subsequent to the order passed by the learned Addl. Sessions Judge and she had filed an application before the learned Ex-Officio Justice of Peace for registration of a criminal case against the respondents accused which has been allowed vide order dated 26.06.2010.
3. On the other hand, learned counsel for the respondents-accused submits that they were allowed bail before arrest on merits of the case strictly in accordance with law by keeping in view the condition precedent attached to the grant of such relief; the bail granting order is neither arbitrary nor fanciful, hence, it does not call for any interference by this Court; the petitioner has failed to hint at any circumstance showing the bail granting order having been misused by the respondents- accused in any manner and that all the essential requirements for interfering with such an order are non-existent in this case; the possession of the house had been handed over to the petitioner and that the story narrated by her in the F.I.R, is absolutely false.
4. Learned Deputy Prosecutor General while going through the record has submitted that the petitioner has been unable to produce any evidence in support of her version as contained in the F.I.R, and no witness has come forward to make statement under Section 161, Cr.P.C, in support of the allegations contained in the F.I.R.; the petitioner- complainant is in habit of moving such applications and getting such-like cases registered wherever she went or wherever she got a house on rent against the owners of the house; lastly contends that the challan has been submitted before the learned Trial Court and there is every likelihood that it shall commence soon.
5. Arguments heard. Record perused.
6. The version of the petitioner-complainant as contained in the F.I.R, discloses the commission of a cognizable offence under Section 452, P.P.C, besides other afore-mentioned offences. The deal between the petitioner and respondent No. 2 stands admitted on both the sides but a controversy regarding payment of Rs. 60,000/- to the respondent No. 2 by the petitioner floats across the face of this case. The petitioner however, is adamant that she had paid the said amount to respondent No. 2 and he in lieu of it, had delivered her the possession of the above-said house.
The investigation officer has concluded during investigation that the aforesaid deal between the petitioner and respondent No. 2 had taken place and the possession of the house had gone to the hands of the petitioner which had been upset and the household articles/belongings of the petitioner on the road side after having been thrown outside the house. Once the possession of the demised house had been handed over to the petitioner by respondent No. 2 under a mortgage deal, he, regardless of the payment of the balance amount had no right to act, as alleged above by the petitioner, except for a legal recourse. He is specifically nominated in the F.I.R, with the role that he being armed with a pistol trespassed into the above-said house, maltreated the petitioner and her daughter, molested their chastity, criminally threw the household articles/belongings of the petitioner outside the house causing breakage and damage to it which lay on the road side since many days and locked the said house, depriving the petitioner of her shelter. Prima facie respondent No. 2 seems to be connected with the allegations contained in the F.I.R. Even otherwise, no malice or ulterior motives on the part of the complainant could be hinted at by the respondent No. 2. The way his pre-arrest bail application has been dealt with by the learned Addl. Sessions Judge is not praiseworthy at all as he, while passing the impugned order, overlooked the requisite rules and law governing the extra-ordinary concession of pre-arrest bail. The impugned order, to the extent of respondent No. 2, has been passed in an arbitrary and whimsical manner which cannot be approved of, hence, it is not sustainable, which is set aside and the pre-arrest bail allowed to respondent No. 2 by the learned Addl. Sessions Judge is recalled.
7. So far as respondent No. 3 Muhammad Ijaz is concerned his name does not find mention in the F.I.R, nor any specific role has been assigned by him and to his extent, I do not find any illegality in the impugned order. The petitioner failed to produce any evidence against respondent No. 3 during the course of investigation so his case squarely falls within the ambit of further inquiry under Section 497(2), Cr.P.C. His false implication due to malice and ulterior motive cannot be ruled out.
The impugned order does not call for interference to the extent of Muhammad Ijaz, respondent No. 3, so the instant petition to his extent is dismissed.