MUHAMMAD WAHEED KHAN, J. Through this single order , I intend to dispose of this petition filed by Naseem Abbas Shah for grant of pre-arrest bail, Criminal Miscellaneous No.9825-B/2019 filed by Saleem Abbas Shah for grant of pre-arrest bail, Criminal Miscellan eous No.9835-B/2019 filed by Atta Huss ain Shah for grant of post-arrest bail, Criminal Miscellaneous No.9821-B/2019 filed by Baqar Hussain Shah for grant of post-arrest bail, Criminal Miscellaneous No.16972-CB/2019 filed by Ghulam Abbas for cancellation of post-arrest bail granted to Muhammad Afzal (respondent No.1) and Criminal Miscellaneous No.16971-CB/2019 filed by Ghulam Abbas for cancellation of post-arrest bail granted to Rustam Zaman (respondent No.1) in case FIR No.0 9 dated 24.04.2018, registered under sections 409, 420, 468 and 471, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 'Act II of 1947' at Police Station ACE, Region Mianwali as all these matters have arisen out of the same FIR and common questions of law and facts are involved therein.
2. Succinctly , the brief facts as spelt out from the FIR are that the petitioners with the connivance of revenue officials namely , Rustam Zaman, Patwari and Muhammad Afzal, Gardawar who by receiving bribe illegally entered mutations, embezzled mutations fees and also mutated property of Saleem Abbas Shah beyond his share/entitlement in the property by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to public exchequer by misappropriation and embezzlement of mutations fees. With these allegations all the petitioners are booked in the instant crime report.
3. Pro and contra arguments heard. Record perused.
4. On meticulous appraisal of facts of the case, it reveals that as many as ten persons had been nominated in the instant crime report. Out of whom three persons namely , Maqbool, Haji Ahmad and Moza-ud-Din have been declared innocent during the investigation and Rustam Zaman, Patwari/Respondent No.1 in Criminal Miscellaneous No.16971-CB/2019 and Muhammad Afzal, Gadawar/respondent No.1) in Criminal Miscellaneous No.16972-CB/2019 have been admitted to bail by learned Special Judge Anti-Corruption, Sargodha vide orders dated 01.03.2019 and 05.03.2019 respectively .
5. As far as petitioners namely , Baqar Hussain Shah in Criminal Miscellaneous No.9821-B/2019 and Atta Hussain Shah in Criminal Miscellaneous No.9835-B/2019 who are seeking post-arrest bail are concerned, although they are named in the FIR but admittedly they have not sold out any property to the complainant and also no role whatsoever has been ascribed to them by the complainant while lodging the FIR and during the course of investigation this factum was confirmed by the Investigating Agency . Both of them have not played any role in the alleged incident. They were arrested on 18.12.2018 and 28.11.2018 respectively and the investigation has already been completed in the instant case. The other aspect of the case is that Atta Hussain (petitioner) was cited as an accused in the crime report as he is one of the marginal witnesses of the sale deed in favour of the complainant and his brothers but at the same time it is also observed by this Court that one Mureed Hussain is also marginal witness along with petitioner Atta Hussain Shah but in the FIR his name is not figured as an accused. In this backdrop, there are sufficient reasons to believe that the cases of both the petitioners call further probe into their guilt within the scope of section 497(2), Cr.P.C. So, both the petitions are hereby allowed and the petitioners are admitted to post arrest bails subject to their furnishing bail bonds in the sum of Rs. 2,00,0000- (rupees two lacs) each with one surety each in the like amount to the satisfaction of the learned trial court.
6. As far as the two petitioners namely , Naseem Abbas Shah and Saleem Abbas Shah (seeking pre-arrest bail) are concerned, although the name of Naseem Abbas Shah is mentioned in the FIR but admittedly he neither sold out any property to the complainant nor he played any role in the alleged crime. As far as Saleem Abbas Shah is concerned, his role is that he owned the property of 71-kanals and 17 marlas but he had sold out the property in excess of his respective share to the complainant and thereby committed fraud but at the same time learned counsel for the complainant has admitted this fact that the complainant is in possession of land which he has purchased from the accused party accord ing to the sale deed but argued that Saleem Abbas Shah (Petitioner) was not the owner of whole property rather he has mutated the rest of share of his brother in favour of the complainant party . Hence, committed fraud but the fact remains that the entire property which according to the sale deed the complainant has purchased from the accused party is not only mutated in his name but at the moment still exists in his name and according to the revenue record he is also enjoying possession of the same.
7. The other aspect of the case is that the complainant had already filed a suit for specific performance which is sub judice before the civil court and that is the best forum to resolve the entire controversy , if any. Even otherwise, the instant FIR has been lodged by the complainant after four years of the alleged occurrence, the explanation of which has not been plausibly explained by the complainant while lodging the FIR. Keeping in view the above circumstances as stated above, the muta tion is still intact in favour of the complainant party which was verified by the Investigating Officer in attendance and the possession of the entire property also rests with the complainant and his brother and there is no other claimant of the disputed property except the present complainant and his brother .
8. All the petitioners/accused persons have been admitted to bail in FIR No.14/18 and FIR No.15/18. The Investigating Officer in attendance apprised the Court that he has already collected all the evidence available in the instant case and report under section 173, Cr.P.C. has already been prepared and sent to the prosecution branch which means that the investigation has already been completed and the persons of the accused for the purpose of investigation are no more required. So, keeping in view the case in its totality the involvement of the present petitioners on the basis of mala fide on part of the complainant cannot be ruled out. It is settled principle of law that Court can even look into and evaluate the mala fide from the facts and circumstanc es of the case which apparently is oozing in the case. Respectful reliance is placed on the ratio decidendi laid down by the august Supreme Court of Pakistan in the case of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v . The State (2005 SCMR 784 ).
9. Keeping in view the foregoing reasons, Criminal Miscellaneous No.9825-B/2019 (Saleem Abbas Shah v. The State etc.) and Criminal Miscellaneous No.9826-B /2019 (Naeem Abbas Shah v. The State etc.) H are hereby allowed and ad interim pre-arrest bails already granted to the petitioners are confirmed subject to their furnishing fresh bail bonds in the sum of Rs.2,00,000/- (rupees two lacs) each with one surety each in the like amount to the satisfaction of the learned trial court.
10. As far as Criminal Miscellaneous No.16971-CB/2019 (Ghulam Abbas v. Rustam Zaman and another ) and Criminal Miscellaneous No.16972-CB/2019 (Ghulam Abbas v. Muhammad Afzal and another are concerned, in the present case, no allegation was levelled against respondents/accused regarding any misuse or abuse of concession of bail by them and at such a stage no useful purpose would be served by cancelling their bail. As stated above, report under section 173, Cr.P.C. has already been prepared and sent to the prosecution branch by the Investigating Agency , so relying on the dictum laid down by the august Suprem e Court of Pakistan in cases of Shahid Imran v. The State and others (2011 SCMR 1614 ) and Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585), cancellation of bails at this stage would not be proper . Therefore, both these petitions are hereby dismissed.