Through the instant petition, the Petitioner (Ansar Mehmood Gondal) is seeking post-arrest bail in respect of FIR No.05/2022 dated 02.02.2022 registered for offences under Sections 109, 409 and 420 PPC read with 5(2) of Prevention of Corruption Act, 1947 at Police Station FIA Corporate Crime Circle, Islamabad.
2. Petitioner 's similar request has been declined by the learned Special Judge Central, Islamabad vide order dated 18.03.2022.
3. The facts in brief as per the FIR are that the allotment of commercial plot No.CP-3B (measuring 95 sq. yards)
Mehran Road Block B Soan Garden Housing Scheme (Zone-V) Islamabad was illegally made without auction from the land allocated for green area/amenities as per approved LOP and building plan of the Society vide letter Ref. No. CECHS/Com/807 on 18.10.2016 duly signed by Ch. Yasir Arafat Mehdi the then Secretary Civilian Employees Cooperative Housing Society ("CECHS") and possession letter Ref. No. CECHS/Com/807 dated 21.12.2016 for the same plot was illegally made with the signature of Ansar Mehmood Gondal ("Petitioner") the then President of the CECHS along with the signature of the then Site Engineer (Sub Engineer) Aftab Anjum of CECHS in favour of Mr. Adil Hussain. Record of the CECHS reveals that above mentioned President / Secretary and Sub Engineer falls under the management committee for the period 2015-2018 and above mentioned plot was allotted in the year 2016 whereas no cost of land/no development charges have been deposited in the CECHS account. Thus the Petitioner along with the other co-accused willfully illegally created/allotted malafidely and dishonestly the above mentioned plot for commercial purpose, which was allocated for the green area / amenities and possession handed over to the allottee by misusing their authority for their personal wrongful gain and committed, prima facie, offence of fraud, criminal breach of trust, misuse of authority for personal wrongful gain, hence this FIR.
4. Learned counsel for the Petitioner submitted that the Petitioner is innocent and has been falsely implicated in this case; that there is an unexplained delay of six years in the registration of FIR; that the Petitioner is specifically named in the FIR however, no specific role has been attributed to him; the Petitioner neither created nor allotted alleged plot to any person; Petitioner only signed the possession letter which was signed by two persons, one is the Petitioner and the second is co-accused, who has been granted post arrest bail by this Court on 03.03.2022; that only secretary is authorized to allot property and once allotment letter is issued, issuance of possession letter is mere formality and cannot be denied; that there is no allegation in the FIR that the Petitioner received any payment or any other gain; that even the signature of the Petitioner on the possession letter has not been verified in six years; that the Petitioner is behind the bars and he is no more required for further investigations and his further detention will amount to pretrial punishment; that the offence leveled against the Petitioner falls within non-prohibitory clauses and that the Petitioner is ready to furnish sufficient surety to the satisfaction of this Honorable Court; that there is no prior conviction of the Petitioner. The learned counsel for the Petitioner has requested for grant of bail.
5. On the other hand, the learned counsel for the affectees submitted that Mr. Adil Hussain is the allottee of the plot and Mr. Yasir Khan is subsequent purchaser; that there is no plot in existence yet payment has been received fraudulently from the affectees; that the role of the Petitioner is different from the co-accused who has been granted bail as investigation has shown that the Petitioner received money; and that there is sufficient material available on record to connect the Petitioner with the commission of alleged of fence.
6. The learned AAG argued that Petitioner violated Section 60 of the Co-operative Societies Act, 1925; that punishment under Section 409 of PPC is up to 10 years so the alleged offence falls under the prohibitory clause of Section 497, Cr.P.C.; that according to the Mr. Yasir's Khan statement under Section 164, Cr.P.C., he paid an amount of Rs. 1,000,000/- to the Petitioner; and that the amenities plot has been changed into the residential plot unlawfully , therefore, instant bail petition may be dismissed.
7. In rebuttal, the learned counsel for the Petitioner stated that Mr. Yasir Khan stated in his statement under Section 164, Cr.P.C., that he made payment to Chaudhry Yasir Arfat Mehdi not the Petiti oner; that one affectee claimed payment of 20 lacs whereas the other one claimed 25 lacs, which reflects concoction on their part.
8. Arguments heard. Record perused.
9. The alleged offences are non-bailable and the offence under Section 409, PPC is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. As such, it falls within the prohibitory clause of Section 497, Cr.P.C. Perusal of the record shows that a specific allegation has been raised by Mr. Yasir Khan in his statement before the learned Magistrate under Section 164, Cr.P.C., that an amount of Rs. 10 lacs was paid to the Petitioner in return for signing and issuing the possession letter. Thus the rule of consistency cannot be applied as the case of the Petitioner is on a different footing from that of the co-accused who has been granted bail and also because of the fact that the Petitioner did not just sign the possession letter but is also the President of the Society. As far as the alleged delay in filing the FIR is concerned, the effect of the same shall be considered at the time of trial.
10. For the foregoing facts and reasons, this Court finds that prima facie there is sufficient material on record to believe involvement of the Petitioner in the alleged offence that carries punishment which falls within the ambit of the prohibitory clause of Section 497, Cr .P.C.
11. Resultantly , I do not find substance in this Petition, which is hereby dismissed .
12. All the observations made hereinab ove are tentative in nature and shall have no bearing on the final determination of guilt or innocence by the learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.