' Through the instant Criminal Miscellaneous, petitioner/complainant; Dr. Zulkifal seeks cancellation of ed to respondents Nos.1 and 2 i,e, Pervaiz Akhtar Mughal and Mahmood Akhtar Mughal by the learned Sessions Judge, Rawalpindi, vide his order, dated 1-3-1999.
2. The facts necessary for the disposal of the instant criminal miscellaneous are that the petitioner/complianant got registered a case against the above-named respondents vide F.I.R.
No,19, dated 18-1-1999, at Police Station Airport, Rawalpindi, under section 420/468/471, P.P.C.. The facts as alleged by the petitioner/complainant in the F.I.R. Are that Pervaiz Akhtar Mughal respondent No,1 entered into an agreement for the sale of a plot of land measuring 7 Marlas situate in Mauza Khana Dak, Tehsil and District Rawalpindi, for a consideration of Rs,3,15,000 and received Rupees one lac towards the sale consideration. Subsequently, said Pervaiz Akhtar Mughal received another Rupees one lac from the petitioner/complainant on the ground that his other brothers also were the co-sharers in the land which he agreed to sell to the petitioner/complainant and that he had to share the sale consideration with his other brothers. The petitioner/complainant alleges that he paid another Rupees one lac to Pervaiz Akhtar Mughal whereupon the previous agreement was done away with and a fresh agreement was executed on 3-7-1997. Although the aforesaid amount of Rs,2 lacs had been received by Pervaiz Akhtar Mughal yet he had the agreement executed between the petitioner/complainant and his real brother Mahmood Akhtar Mughal. Pervaiz Akhtar Mughal, it is further alleged, received yet another amount of Rs,25,000 on account of expenses for registration of the sale-deed. The petitioner/complainant has further alleged in the F.I.R. That, subsequently, in the absence of the complainant, Pervaiz Akhtar Mughal in collusion with his other brother with whom he had got the sale agreement, dated 3-7-1997, executed, got executed a sale- deed in favour of the petitioner/complainant and provided the complainant with a photo copy of the same. The petitioner/complainant alleges that on examining the copy of the sale-deed, got executed by Pervaiz Akhtar Mughal and his other brother Mahmood Akhtar Mughal in favour of the complainant, it transpired that it was in respect of some other land which was situated in village Mauza Gangal, Tehsil and District Rawalpindi, and the sale consideration of the land was mentioned as Rs,15,000 only. The land, subject-matter of the last-mentioned sale-deed, was also not properly described in the sale-deed so as to let the complainant know as to where was the same situated. The land sold through the sale-deed, a copy of which as aforesaid was provided to the complainant was shown to belong as per the document in question to one Jehangir. The fact that the land subject-matter of the sale-deed, copy whereof was provided to the complainant belonged to one Jehangir who had nothing to do with the complainant and was not even remotely known to him and that the sale consideration of the land was mentioned only as Rs,15,000 whereas the complainant had paid to Pervaiz Akhtar Mughal Rs,2,25,000 in all towards the sale consideration and that the land shown in the sale-deed also was not properly described, surprised the complainant and he became apprehensive of the fraudulent intention of Pervaiz Akhtar Mughal and, his real brother Mahmood Akhtar Mughal. When he protested to them about the aforesaid facts that he had paid to them Rs,2,25,000 and had purchased a land situate in Mauza Khana Dak which belonged to Pervaiz Akhtar Mughal and his other brothers whereas the land allegedly sold by them to the complainant was situate in Mauza Gangal and the value thereof was shown only as Rs,15,000 and the same was also not properly described and also belonged to a person called Jehangir who was not at all known to the complainant and with whom the complainant had no dealing at all in this behalf, the respondents/accused started putting off the matter on one pretext or the other and said that they would return the amount received by them to the complainant. The complainant further alleges that the assurances of the respondents notwithstanding, they failed to return the money or execute a proper sale-deed in his favour in respect of the land agreed to be sold to the complainant. The complainant in this background of facts alleged that the respondents had committed fraud with him. They had deprived him of a huge amount of Rs,2,25,000 and instead of selling to the complainant the land shown to him and situate in Mauza Khana Dak, sold to him a land belonging to some Jehangir who was not at all known to the complainant and with whom the complaint had no such dealing either. They had deprived the petitioner of the aforesaid amount of Rs,2,25,000 and in the copy of the sale-deed provided to the complainant they had mentioned the price of the land allegedly sold by them to the complainant as Rs,15,000 only. In this background of facts, therefore, a case was registered .Against respondents Nos.1 and 2 by the police of Police Station Airport, Rawalpindi, vide the F.I.R. Abovementioned.
3. Feeling apprehension of their arrest by and at the hands of police of Police Station Airport, respondents Nos.1 and 2 applied for pre-arrest bail to the learned Sessions Judge, Rawalpindi.
Having been admitted to interim bail by the said learned Court, the same was finally confirmed in favour of the respondents vide the impugned order, dated 1-3-1999, by the same learned Court.
4. Mr. M. Ilyas Siddiqui, Advocate, learned counsel for the petitioner/ complainant appearing in support of the instant criminal miscellaneous seeking cancellation of ed to the respondents, has raised the following contentions:--
(a) that the grant of pre-arrest bail is an extraordinary redid' which is very rarely granted and in the face of the allegations of cheating and fraud made by the petitioner/complainant against respondents Nos.1 and 2 which were prima facie established before the learned Sessions Judge and admitted by him in Para. 6 of his order, dated 1-3-.1999, he nevertheless proceeded to admit the respondents to pre-arrest bail;
(b) that the fact that respondents Nos.1 and 2 had acted fraudulently and had cheated the petitioner/complainant was clearly made out from the facts and circumstances of the case.
Elaborating his submissions in this behalf, learned counsel for the petitioner submitted that respondent No,1 received Rs .2,25 ,000 from the petitioner/complainant, got executed a sale agreement/Iqrarmama by his brother Mahmood Akhtar Mughal on 3-7-1999 in favour of petitioner/complainant in respect of land measuring 7 Marlas situate in Mauza Khana Dak.
Subsequently, however, they provided a copy of the sale-deed allegedly executed by and through them in favour of the petitioner/complainant in respect of a land situate in Mauza Gangal which belonged to one Jehangir who was not even remotely known to the petitioner/complainant and with whom the. Petitioner/complainant had no dealing whatever in respect of any land at any point of time. Above all, against the consideration received amounting to Rs,2,25,000 from the petitioner/complainant the respondents showed in the sale-deed the consideration of the land as having been sold in favour of the petitioner/complainant for only Rs,15,000. On the basis of these facts the petitioner's learned counsel Mr. M. Ilyas Siddiqui, alleged that if these facts did not constitute fraud, cheating and forgery then the definition of these offences as given in the Penal Code shall have to be re-considered;
(c) that on being confronted with the true facts respondents Nos.1 and 2 in the first instance tried to put off the matter on one pretext or the other and later on agreed to return the petitioner/complainant's money received by them. Not only this they also admitted the money as having been received by them before a Jirga constituted for the purposes of bringing about re- conciliation between the parties but later on they resiled from their commitment of returning the money or selling the land agreed to be sold by them to the petitioner/complainant ;
(d) that from the facts and circumstances as alleged by the petitioner/ complainant in the F.I.R., an offence under section 467, P.P.C. Was clearly made out against respondents Nos.1 and 2 inasmuch as they received from the petitioner/complainant an amount of Rs,2,25,000, executed a document in his favour on 3-7-1997 by way of agreement for sale/Iqrarnama and thereby acknowledged that they were under a liability to execute a sale-deed in respect of a land measuring 7 Marlas situate in Mauza Khan Dak, Tehsil and District Rawalpindi. The said offence, learned counsel for the petitioner/ complainant maintained, was punishable with life imprisonment and fell, therefore, clearly within the prohibitory clause of section 497, Cr.P.C., and the learned Sessions Judge was not competent to admit respondents Nos.1 and 2 to bail, particularly, bail before arrest.
5. Dr. Z. Babar Awan, A dvocate, learned counsel for respondents Nos.1 and 2, appearing against the petitioner seeking cancellation of bail controverted the submissions made by and on behalf of the petitioner/ complainant and raised the following contentions:--
(i) that true it was that pre-arrest bail was an extraordinary relief but that the discretion having once been exercised in favour of respondents Nos.1 and 2, special circumstances had to be disclosed by the petitioner/ complainant for seeking cancellation of pre-arrest ed to the respondents and that no such special circumstances have been disclosed by the petitioner/complainant for recalling the ing order;
(ii) that the sheet-anchor of the case of the petitioner/complainant was the alleged agreement of sale, dated 3-7-1997, allegedly executed by Mahmood Akhtar Mughal, one of the respondents, in favour of the petitioner/complainant. Dr. Z. Babar Awan, learned counsel maintained that this sale agreement was a forged document and had never been executed by the respondents either jointly or even by Mahmood Akhtar Mughal in favour of the petitioner/complainant. The same could not, therefore, be made basis of the criminal case against the respondents;
(iii) that the prosecution of respondents Nos.1 and 2 was ulteriorly motivated and actuated by bad faith and that when such are the allegations against the prosecution, the learned Sessions Judge was fully justified to admit the respondents Nos.1 and 2 to pre-arrest bail;
(iv) that none of the offences alleged against respondents Nos.1 and 2 fell within the prohibitory clause of section 497, Cr.P.C. And where such is the position then the grant of bail is a rule and refusal of the same is an exception.
5-A. Malik Abdul Qyyum, Advocate, appearing on behalf of the State adopted the arguments advanced by and on behalf of the petitioner's learned counsel Mr. M. Ilyas Siddiqui and supported his plea for cancellation of pre-arrest ed to respondents Nos.1 and 2.
6. I have considered and evaluated the respective submissions of the learned counsel for the parties and have very carefully gone through the ing order passed by he learned Sessions Judge, Rawalpindi, as also the record of the case placed before me. I shall first of all take up the last- mentioned plea raised for and on behalf of respondents Nos.1 and 2 by their learned counsel Dr. Z.
Babar Awan to the effect that where the offence alleged against an accused person does not fall within the prohibitory clause of section 497, Cr.P.C., grant of bail is a rule and refusal of the same is an exception. There is no cavil with the proposition as propounded by the learned counsel for respondents Nos.l and 2. However, this is not an absolute rule. The bail can be refused even in cases which do not fall within A the prohibitory clause of section 497, Cr.P.C. Reliance in this behalf is placed on PLD 1997 SC page 545 and Imtiaz Ahmad and another v. The State and Muhammad Afzal and another v. The State 1997 SCMR page 279. However, as rightly contended by the learned counsel for the petitioner/complainant Mr. M. Ilyas Siddiqui, from the facts and circumstances of the case as alleged in the F.I.R. An offence under section 467, P.P.C. Was clearly made out against respondents Nos.l and 2. The said offence was punishable with life imprisonment and clearly fell within the prohibitory clause of section 497, Cr.P.C. Learned counsel for respondents Nos.1 and 2 kept in view the offences under section 420/468/471, P.P.C. Only and ignored the offence under section 467, P.P.C. Which, as aforesaid, was clearly made out against the respondents Nos.1 and 2.
The star argument of the learned counsel for respondents Nos.1 and 2 was that pre-arrest bail was indeed an extra-ordinary relief but that once a Court had exercised a discretion in favour of an accused person by admitting him to pre-arrest bail, some special circumstances must be disclosed for seeking cancellation of ing order particularly so, when it is the case of the accused that the case of the prosecution against him is ulteriorly motivated and actuated by bad faith. Dr. Z.
Babar Awan, Advocate, in this behalf very emphatically submitted that when mala fides are alleged against the prosecution for falsely implicating an accused person, the Court can exercise discretion by admitting the accused to pre-arrest bail if it feels so inclined on the basis of the facts brought to its notice or placed on record before it and that in the context of the case of the petitioner/complainant against respondents Nos.1 and 2, a case for admitting the respondents to pre-arrest bail was clearly made out. I have examined the contention of the learned counsel for respondents Nos.1 and 2 in the context of the present case but do not feel impressed by the same.
For, I am of the considered opinion that it is not sufficient alone for an accused person to show that the case of the prosecution against him is ulteriorly motivated or actuated by bad faith but it is important that the explanation that he offers in his defence and as to his innocence qua the allegations of his false implication should be plausible and should be such as should appeal to reason. Applying this test to the facts of this case, let us now examine as to whether the explanation offered by respondents Nos.1 and 2 for their false implication in the case by the petitioner/complainant is plausible and consistent with their innocence. In order to discover for myself as to why had the petitioner/ complainant filed allegedly a false case against respondents Nos.1 and 2, I pointedly asked Dr. Z. Babar Awan, Advocate, learned counsel for respondents Nos.1 and 2 to disclose the reason for the same. His answer to the question was that respondent No,1 is an ex-Member of the District Council, Rawalpindi, and had in the previous election defeated one Ch. Muhammad Afzal from his constituency and that the present criminal case had been instituted against respondents Nos.1 and 2 at the instance of said Ch. Muhammad Afzal. When confronted with this explanation as offered by learned counsel for respondents Nos.1 and 2, the petitioner/ complainant submitted that the explanation offered by the learned counsel for respondents Nos.1 and 2 was absolutely devoid of any merit whatever, for the reason that he was a doctor by profession and had no connection with the local politics of the area and in any case he even did not know who Ch. Muhammad Afzal was with whom respondents Nos.1 and 2 claimed to have a political rivalry and who, according to them, was instrumental in getting the criminal case registered against them. This implausibility of the explanation offered by respondents Nos.1 and 2 for their alleged false implication in the case at the hands of the petitioner/complainant, apart, the respondents had to show the falsity of their false implication in the case in the context of the allegations made in the F.I.R. The petitioner/complainant alleged in the F.I.R. That respondents Nos.1 received Rs,2,25,000 from him towards sale consideration of a plot of land measuring 7 Marlas situated in Mauza Khana Dak which was fully described in the sale agreement/Iqrarnama, dated 3- 7-1997, executed by respondent No,2 in favour of the petitioner/ complainant. However, the copy of a sale-deed which respondents Nos.1 and 2 later on provided to the petitioner/complainant allegedly evidencing the sale of the land in question in favour of the petitioner/complainant showed that the said land was neither properly described nor was situated in Mauza Khana Dak and was in fact situated in Mauza Gangal and belonged not to either respondent No,1 or respondent No,2, but to the Jehangir who was not even remotely known to the petitioner/complainant. How on earth could respondents Nos.1 and 2 justify this? When confronted with these glaring facts, learned counsel for respondents Nos.1 and 2 could not but fall back upon the argument that respondents Nos.1 and 2 never executed the sale agreement/Iqrarnama, dated 3-7-1997, in favour of the petitioner/complainant and alleged with all the vehemence at his command that the same was a forged document. Unfortunately, however, the learned counsel for respondents Nos.1 and 2, Dr. Z. Babar Awan, Advocate, has not been able to take me into confidence as to what was the enmity between the petitioner/complainant, Dr. Zulkifal and respondents Nos.1 and 2 so as to furnish a basis for the false implication of the respondents in the criminal case registered against them at the instance of the petitioner/complainant. No such enmity was brought to the notice of this Court so as to justify the false implication of the respondents in the absence whereof there is no merit in the contention of the learned counsel for respondents Nos.1 and 2 that the said respondents have been falsely implicated in the case.
7. Coming now to the exercise of discretion by the learned Sessions Judge in favour of respondents Nos.1 and 2 which their learned counsel, Dr. Z. Babar Awan, wants not to be interfered with as having been properly exercised, I am of the view that the discretion has not been properly exercised by the learned Sessions Judge in favour of respondents Nos.1 and 2. The reason for my this conclusion can be found by a perusal of Para. 6 of the order passed by the learned Sessions Judge, Rawalpindi, whereby he admitted respondents Nos.1 and 2 to pre-arrest bail. The relevant portion where he held a prima facie case to exist against respondents Nos.1 and 2 in the said para. Of his order is reproduced hereunder:-- ' Para. 6 "From the evidence collected by the prosecution, the execution of agreement to sell between Mahmood Akhtar Mughal and Dr. Zulkifal complainant is supported from the statements of the executing witnesses, the stamp vendor and Sub-Registrar. Also there is evidence to the effect that the co-accused Pervez Akhtar Mughal received Rupees one lac at the initial stage and, subsequently, received the remaining consideration plus costs of registration etc."
' Having recorded a finding to the aforesaid effect as hereinbefore reproduced in Para. 6 of his order how on earth could the learned Sessions Judge justify the exercise of discretion in favour of respondents Nos.1 and 2, is a circumstance which is beyond my comprehension. Yet another circumstance pointed out by the learned counsel for respondents Nos.1 and 2 for justifying the ing order in favour of respondents Nos.1 and 2 was the fact that the dispute between the petitioner/complainant on the one hand and respondents Nos.1 and 2 on the other was a dispute which was civil in nature and that respondents Nos.1 and 2 had already instituted a civil suit against the petitioner/complainant who had entered appearance before the Civil Court and such being the nature of controversy between the parties no criminal intention could be imputed to respondents Nos.1 and 2 so to justify the maintainability of a criminal case against them. It is not only relevant but important to point out that the said suit stands dismissed by the Civil Court concerned. Learned counsel for respondents Nos.1 and 2 also during the course of his forceful arguments pleaded with some vehemence that the alleged sale agreement was forged document and that to prove the authenticity of his argument in this behalf the same should be referred to a Handwriting Expert. By raising the plea to this effect, learned counsel wanted this Court to assume the role of an investigator or for that matter of a trial Court. This sort of investigation is to be made by the police in the first instance and after the submission of the challan in the Court the said exercise can be undertaken by the trial Court. This Court is seized only of a bail application. It is plain that for disposing of the bail application such an exercise is not called for nor even otherwise the same is permissible. For, this will amount to pre-judging the merits of the case of the parties by this Court and any expression by this Court on the said merits is calculated to prejudice the case of the parties at the trial. There is, therefore, no warrant in law for this Court to embark upon the exercise of this nature.
8. The net result of the foregoing discussion is that I do not feel persuaded by the conclusions arrived at by the learned Sessions Judge, Rawalpindi, in his impugned order. Having coming to the conclusion that there was a prima facie case against respondents Nos.1 and 2 in Para. 6 of his order as aforesaid, there was no justification whatever for him to admit respondents Nos.1 and 2 to the extraordinary relief of pre-arrest bail. The ing order is, therefore, set aside and the ed to respondents Nos.1 and 2 is recalled. The petition is disposed of.