AMJAD ALI SAHIT O, J.---Through this Bail Application, the applicant/accused seeks post-arrest bail in Crime No.359/2019 registered under Sections 5(2) of Act-II, PCA 1947 read with Sectio ns 419/420/468/471/109, P.P.C. registered at PS AHTC FIA, Karachi, after his bail plea has been declined by learned Judge, Special Court (Central-I), Karachi vide order dated 18.05.2020.
2. Brief facts of the prosecution case as alleged in the FIR are that an Enquiry No.168/2019 was registered consequently upon receipt of a complaint from Tariq Islam as such based on such enquiry FIR was registered on 28.08.2019 at about 1605 hours. The allegations in nut-shell against the applicant/accused Ghulam Farooq Channa is that he was posted as Secreta ry Union Council No.12, Jamshed Town, Karachi as such he with criminal intention issued a false birth certificate by changing the father's name/ family name Chotani, based on such document, fake CNIC was issued in the name of accused Nasreen showing her father's name as Muhammad Iqbal and mother's name Naseem Begum Chotani. After the enquiry , it was proved that the applicant/accused is a public servant by abusing his official position issued false birth certificate, thereby facilitated the private accused to usurp the property of Chotani family thus the FIR was registered against him amongst the private as well as NADRA person.
3. Learned counsel for the applicant/accused contends that the applicant is innocent and has falsely been implicated; that the alleged certificate was neither signed by the applicant nor issued by him having no knowledge; that the learned trial Court has not justifi ed to hold that the conspiracy was allege dly hatched by all accused nor used the property in question; that no such material brought on record to connect the applicant with commission of offence; that at the time of issuance of alleged birth certificate on 26.09.2014, application of Muhammad Iqbal late father of accused Nasreen Begum with copy of CNIC and affidavit verifying the contents of application true and correct; that in the year 2014 under Sindh Local Government Act, 1914 there were no prevailing rules and regulations described, therefore, affidavit of the party considered the appropriate satisfaction of correctness of the contents of application of birth/death certificate, that the allegation against the present applicant is that he issued a false and forged document is incorrect; that the offence does not fall within the prohibitory clause. He lastly prays for grant of post-arrest bail. In support of his contentions, learned counsel for the applicant has relied upon the cases (1) 2020 YLR Note 22 (Muhammad Shabbi r v. The State) , (2) 2014 MLD 591 (Ali Sher v. The State) , (3)
2009 SCMR 1488 (Zafar Iqbal v. Muhammad Anwar) , (4) PLD 2011 SC 171 (Ayaz Ahmed Khan v. The State) ,
(5) PLD 2008 SC 438 (Muhammad Nawaz v. The State) , (6) 2020 SCMR 434 (Khalid Mehmood v. The State) ,
(7) 2014 SCMR 27 (Nisar Ahmed v. The State) , (8) 2017 PCr.LJ 397 (Mohsin Ihsan v. The State) , (9) 2017 YLR 1957 (Fawad Rehman v. The State) , (10) 2001 PCr.LJ 157 (Muhammad Younas v. The State) , (11) 2019 YLR 1362 (Hakim Hussain v. The State) , (12) PLD 1995 SC 34 (Tariq Bashir v. The State) , (13) 2014 PCr.LJ 1464 (Mustafa Ali v. The State) , (14) 2017 YLR Note 446 (Abdul Wasay Soomro v. The State) , (15) 1994 SCMR 1283 (Government of Sindh v. Raees Farooq and others) , (16) 2010 PCr.LJ 803 (Muhammad Saleem Akhtar v. The State) , (17) 2015 PCr.LJ 224 (Muhammad Abid Farooq v. The State) , (18) 2019 SCMR 1738 (Muneer Ahmad Sheikh v. D.G. NAB, Karachi) , (19) PLD 2017 SC 147 (Adnan Prince v. The State) and (20) SBLR 2014 Sindh 460 (Hazoor Bux Naeem Shaikh v . The State) .
4. On the other hand, learned counsel far the complainant as well as learned AAG duly assisted by I.O. have vehemently opposed for grant of post-arrest bail to the applicant/accused on the ground that the contention raised by learned counsel for the applicant that neither the applicant has signed the birth certificate nor he issued the same is incorrect, as in Para # 5 of the first bail application filed by the applicant under section 498, Cr.P.C., before the trial court, he admits that the alleged Birth Certificate for which application was supported by the documents required for the purpose, hence certificate was issued by the applicant while observing all Rules/SOPs issued for the purpose hence not committed the offence alleged in the FIR, that alleged birth certificate was issued by the applicant while observing all the rules, SOPs for the purpose; hence he has admitted that he has issued the said certificate; that he being public servant misused his official position, thereby facilitated the co-accused and intentionally issued a false and fabricated birth certificate to usurp the property of Chotani family . He argued that there is no question of jurisdiction is involved in the instant case in as much as the officials of NADRA are involved in the case, therefore the same is a federal institution, accordingly , FIA has jurisdiction to look into the matter in accordance with law; that a complainant is a private person against whom no enmity or has been established; that applicant/accused is a habitual offender in as much as beside this case he is also involved in FIR No.306/2015 (Case No.14/2015 under section 5(2) PCA-II 1947 pending before the Court of learned Special Judge (Central-II), Karachi as we as he is also facing trial in another FIR No.406/2018 under section 5(2) PCA-II 1947 before this Court; that the pre-arrest bail was declined to applicant up to the Hon'ble Suprem e Court of Pakistan, hence no ground for bail exist, therefore, the bail application is liable to be dismissed. In support of his contentions, learned counsel for the complainant has relied upon the cases (1) 2010 SCMR 1835 (Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others) , (2) 2008 SCMR 839 (Seema Fareed and others v. The State and others) , (3) 201 7 SCMR 390 (Muhammad Aslam v. The State and others) , (4) PLD 1968 SC 281 (Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan) , (5) 2010 SCMR 1221 (Shahzad Ahmed v. The State through F.I.A.
Islamabad) , (6) 2015 SCMR 133 (The State/ANF v. Aleem Haider) , (7) 2018 MLD 1142 (Israr Ahmed v. The State) , (8) 2016 SCMR 18 (Zaigham Ashraf v. The State and others) , (9) 2002 SCMR 1 797 (Subhan Khan v.
The State) , (10) 2009 SCMR 1488 (Zafar Iqbal v. Muhammad Anwar and others) , (11) 2019 MLD 169 (Muhammad Ilyas and others v. The State and others) , (12) PLD 1995 SC 34 (Tariq Bashir and others v. The State) , (13) PLD 1989 SC 585 (Muhammad Ismail v. Muhammad Rafique another) , (14) PLD 1972 SC 81 (Manzoor and others v. The State) , (15) 1969 SCMR 151 (The State v. Shah Sawar) , (16) 1985 SCMR 1949 (Jamaluddin v. The State) , (17) 2012 PCRLJ 1 (Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi) , (18) 2002 SCMR 1886 (Mst. Parveen Akhtar v. The State and others) ,(19) PLD 1988 SC 621 (Asmat Ullah Khan v. Bazi Khan and another) , (20) 2011 SCMR 1606 (Muhammad Abbasi v. The State and another) , (21)1985 SCMR 195 (Arbab Ali v. Khamiso and others) , (22) PLD 1994 SC 65 (Shahzaman and others v. The State another) , (23) PLD 1990 SC 83 (Mst. Bashiran Bibi v. Nisar Ahmad Khan and others) ,
(24) 1985 SCMR 382 (Ibrahim v. Hayat Gul and others) , (25) 1988 SCMR 1129 (The State v. Rashid Ahmad and another) , (26) PLD 1985 SC 182 (Muhammad Sadiq v. Sadiq and others) , (27) PLD 2018 SC 595 (Mst.
Sughran Bibi v. The State) , (28) 2019 SCMR 372 (Malik Din v. Chairman National Accountability Bureau) ,
(29) 2017 SCMR 81 (Ghulam Rasool and others v. Noor Muhammad and others) , (30) 2008 SCMR 510 (Commissioner of Income Tax/W ealth Tax, Peshawar v. Haroon Bilour and others) , (31) PLD 1972 SC 277 (Amir v. The State) , (32) PLD 2020 SC 293 (Ghulam Farooq Channa v. Special Judge ACE (CENTRAL-I) , (33)
2020 SCMR 956 (Mukaram v. The State and another) and (34) 2020 SCMR 1115 (Sami Ullah and another v.
Laiq Zada and another).
5. I have heard the learned counsel for the parties and have gone through the material available on record. The pre-arrest bail filed by the applicant/accused was dismissed by the learned trial Court vide order dated 16.09.2019, and then the applicant preferred a bail application bearing No.1327/2019 before this Court, which was also dismissed while passing the following orders: "9... Keeping in mind the above-enunc iated principles and parameters to deal with the application of pre- arrest bail, the record made available was scanned keenly with the assistance of the learned counsels for the parties and the investigation officer, to find out the ground for confirmation of the bail by ruling out the possibility of implication of the applicant being mala fide for ulterior motives and element of unjustified harassment, but these considerations are conspicuously missing in the present case as the issuance of birth certificate for transposition/change of parents names is not even denied by the applicant, further , the said fresh birth certificate provided the laid foundation for subsequent illegal alleged actions inasmuch issuance of CINIC by the co-accused persons. Moreover , no mala fide or of the complainant has been alleged by the applicant in as much specific role has been assigned to the applicant in the FIR. The case law referred and relied by the learned counsel for the applicant do not lend any support to the case of the present application and the same are distinguishable."
6. Thereafter , learned counsel for the applicant preferred a Criminal Petition bearing No.169/2020 before the Hon'ble Supreme Court of Pakistan; wher e the Hon'ble apex Court has also dismissed the petition of the applicant.
The para 4 of the apex Court's judgment are very much relevant, which needs to be reproduced hereunder: "4...........The petitioner was at the helm of affairs when the bogus certificate was issued; cognizance on belated disclosure does not mitigate the culpabil ity nor can be equated with mala fide. Release of co-accused on post- arrest bail is entirely beside the mark for the reason stated above. View taken by the learned High Court of Sindh as well as the learned Special Judge (Central-I) Karachi is in accord with law, being consistently followed by this court till date. Petition fails. Leave declined."
7. I have also scrutinized the material which reflects that the name of the applican t/accused transpired in the FIR with the specific allegation of issuance of false birth certificate which was verified by the concerned authority viz. Secretary Union Counsel No.16 Soldier Bazar, Karachi and it was verified that the same was fraudulently issued by the applicant/accused for cheating. Further , it appears that co-accused Nasreen Begum wife of Ghulam Muhammad Magsi holding CNIC No.42201-8935658-2 appeared at NADRA office along with a birth certificate issued by the applicant in the fake name of Nasreen Begum father name as Muhammad Iqbal, mother name of Naseem Begum Chotani though she was never belonged to Chotani family , as per record, she was born in Shandadkot, District Larkana and belongs to a Magsi family . The death certificate in the name of Naseem Begum Chotani wife of Muhammad Iqbal was frequently used before NADRA for concealment of facts and getting intent benefits. At the time of issuance of the certificate, the applicant was posted as Secretary Union Counsel B No.12, Jamshed Town, Karachi with the collusion of co-accused he has issued a birth certificate as such he has allegedly committed fraud and issued a fake and manipulated birth certificate by adding the name of Chotani family in the fake birth certificate.
8. So far the next contention of the learned counsel for the applicant/accused's that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C., the grant of bail is a rule and refusal is an exception. It is correct that the alleged offence does not fall within the prohibitory clause of Section 497, Cr.P.C. Admittedly , offences under sections 419 and 468, P.P.C. maximum punishable up to seven years and ordinarily in such like cases grant of bail is a rule and refusal is an exception. The legislature had intentionally kept these offences as non-bailable and it has consistently been held by this. Court as well as the Hon'ble Supreme Court of Pakistan that in non-bailable offences grant of bail is not the right of an accused and it is a concession. Reference may well be made to the case of Shameel Ahmed v. The State (2009 SCMR 174) wherein the Hon'ble Supreme Court of Pakistan has held that:- "4 Bail in a case not falling within the prohibitory clause of S.497, Cr.P.C.---Principles---Grant of bail in cases not falling within the domain of prohibition clause of proviso to S.497, Cr.P.C. is not a rule of universal application--Each case has to be seen through its own facts and circumstances--Grant of bail, no doubt, is a discretion granted to a Court, but its exercise cannot be arbitrary , fanciful or perverse."
In another case of Mehmood Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442) wherein the Hon'ble Supreme Court of Pakistan held that:- "4............. None can claim that bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause of section 497, Cr .P.C."
9. The applicant/accused has allegedly committed fraud and cheating with the complainant by issuing a fake Birth Certificate. Before this case, the applicant was also involved in two similar nature cases which seems to be that the applicant/accused is a habitual offender . All the PWs have fully implicated the applicant with the commission of the alleged offence and supported the version of the complainant in their section 161, Cr.P.C., statements. At the bail stage, only tentative assessment is to be made, hence, the sufficient material is available on record to connect the applicant/accused with the alleged of fence.
10. In view of the above, learned counsel for the applicant/accused has failed to make out a case for grant of post- arrest bail. Resultantly , the instant bail application merits no consideration, which is dismissed D accordingly . The learned trial Court is directed to expedite the case and decide the same within three months after receipt of this order .
11. The case-laws relied by learned counsel for the applicant is distinguishable from the facts and circumstances of the case.
12. Needless to mention here that the observations made hereinabove are tentative and would not influence the learned trial Court while deciding the case of the applicants on merits.