' SHAHID HAMEED DAR, J.---The petitioner seeks bail after arrest in case F.I.R. No,347, dated 6-5-2012, under sections 420, 468, 471, P.P.C., registered at Police Station New Town (Rawalpindi), on the complaint of Farhan Ahmad.
2. Precisely the prosecuition case as narrated by Farhan Ahmad (complainant) is that he ran a jewelry shop in Sarrafa Bazaar Rawalpindi where Abid Mehmood and Sadiq Mehmood (petitioner) also dealt in the jewelry; they developed business ties with him and frequently purchased gold from him on credit; a stage came, when they owed a sum of Rs,1,25,00,000 to him as price of the gold, purchased by them; to indemnify him, .Both the accused handed down to him four signed pro notes on 6-8-2010 and they also handed over to him an original sale deed, pertaining to House No,CA-142, area measuring 7 marlas as a mortgage-agreement and undertook that they would alienate the said house to him if they could not repay the above said amount; the accused executed a sale-deed qua the said house in his favour and promised to deliver to him the possession thereof later on; one month thereafter he learnt that the said house had been transferred to his wife, by accused Zahid Islam, being general attorney holder of the accused, whereon he went Co them, and asked for retrieval of the possession of the said house; he again approached the accused at village Pandoda and reminded them of their promise to hand over to him the possession of the said house but they told him that the house in question had been alienated through a sale-deed dated 2-9-2010 to Mst. Samina Kausar and Zahid Islam; he reacted by saying that the power of attorney in favour of Zahid Islam had been cancelled by them on 6-10- 2010 in reply to which they turned rash and asked him to do whatever he liked; he went to kutchery Rawalpindi where he got the knowledge that the accused having connived with Zahid Islam and his wife Mst. Samina Kausar had got lodged Rapat No,27, dated 26-8-2010 qua the loss of original sale-deed of the said house and got prepared a power of attorney in favour of Zahid Islam on 27- 8-2010 who, by using it to his benefit, transferred the said property to his wife on 2-9-2010 and subsequent to it, accused Abid Mehmood and Sadiq Mehmood (petitioner) deceitfully and fraudulently got attested a sale-deed in his (Zahid Islam) favour qua the said house, on 8-10-2010.
3. Learned counsel for the petitioner submits that date and time of the alleged occurrence is known as is evident from the tenor of the F.I.R.; civil litigation -is pending between the parties since 2009 and the document/property in question is the subject-matter of the said suits; sections 420, 471, P.P.C. Are bailable whereas section 468 is non-cognizable;' the complainant learnt about the alleged occurrence within one month of the dispute but he took years to report the crime to the police which smacks dishonesty and mischief on his part; Zahid Islam, as per the contents of the is the principal accused of this case who has been granted bail before arrest by the learned Additional Sessions Judge, Rawalpindi vide, order dated 22-5-2012 and in such an eventuality the case of the petitioner might have been resolved in similar terms, by the said court on the principle of consistency; the offences, the petitioner is charged with; do not fall under the prohibition of section 497(1), Cr.P.C.; the petitioner's case outrightly constitutes need for further inquiry into his guilt, hence he may be granted the relief prayed for. Relies upon "Raja Pervaiz Akhtar v. State" (2000 YLR 539), "Tariq Bashir and 5 other; v. The State" (PLD 1995 SC 34) and "Ubedullah v. The State" (2003 PCr.LJ 1921 Karachi).
4. On the other hand, learned law officer assisted by learned counsel for the complainant opposes with the contention that the petitioner joined by his co-accused got prepared an agreement deed dated 6-8-2010 whereby they admitted their liability in similar terms, as mentioned in the F.I.R.; the pendency of a civil suit is no bar in initiation of proceedings under the criminal law as both the remedies can be availed in parallel to each other; the petitioner has deprived the complainant of a sizeable amount of Rs,1,25,00,000 and also committed fraud upon him by letting the house in question transferred/alienated in the name of wife of accused Zahid Islam, hence he may not be released on bail.
5. After hearing learned counsel for the parties and perusing the record, it is observed that the petitioner joined by his real brother and co-accused appears to have committed the crime with uncanny cleverness and sharpness of mind. The circumstances reveal that he kept both, the complainant and Zahid Islam engaged simultaneously so as to leave each one of them labouring under an impression that his part of the deal was legally perfect and his claim stood indemnified in complete, terms. The story of F.I.R. May hint at the mental agility and briskness of the mind of the accused but the events in question, which are in the documented form, plainly establish that the accused with intent to kill two birds with one stone, had done nothing but an act of sheer fraud and forgery by which they swindled a huge amount, running into millions of rupees, from the complainant and probably, also from Zahid Islam accused and his wife. It has been vociferously contended by learned counsel for the petitioner that sections 420 and 471 were bailable and section. 468, P.P.C. Is, non-cognizable and in this situation, the police could not embark upon the, investigation of this case unless so authorized by a Magistrate under section 155(2), Cr,P.C. I am afraid this particular argument of the learned counsel is devoid of any legal force as blending of a non-cognizable offence with a cognizable offence does not necessarily warrant obtainment of permission by the police, from a learned Magistrate for conducting investigation of a case, registered for the mentioned category of offences. The prosecution cannot be blamed at all in respect thereto, if they have not gone for the invocation of section 155(2), Cr.P.C. There is another important aspect of the case which relates to preparation of an agreement deed by Sadiq Mehmood (petitioner) and his brother Abid Mehmood, on 6-8-2010 wherein they have categorically admitted their liability to pay an amount of Rs,1,25,000,00 to Farhan Ahmad (complainant) which is directly corroborative to the claim of the complainant, as mentioned in the F.I.R. That accused Muhammad Sadiq etc. Had a liability to discharge in his B favour. The pendency of a couple of civil suits between the parties is no ground to hold that the criminal proceedings against the accused by way-of the instant F.I.R. Case could not be taken to its legitimate end. There is no cavil to the proposition that civil and criminal litigation can proceed side by side inter se.
6. Learned counsel for the petitioner has argued another point in absolute terms that an accused confronted with a charge, not falling under the prohibitory clause of section 497(1), Cr.P.C. Should, regardless of the allegations, be necessarily granted bail, as according to him, grant of bail in such like offences is a rule and rejection thereof an exception. The rule is not inelastic that every accused, being prosecuted for an offence, falling in the mentioned clause, must be showered upon the concession of bail as a matter, of right, leaving aside the peculiar facts of the said case. An argument to the contrary would be a mere misconception of law. The basic principle of law is that an accused having committed a non-bailable offence would only be entitled to grant of bail on merits if his case falls within the purview of 2nd proviso to section 497, Cr.P.C. And this is the qualification, the case of the petitioner is not studded with.
7. For the foregoing reasons, am not inclined to accept this application which is dismissed accordingly.