' This order will dispose of Criminal Miscellaneous No 458/CB of 2002 filed by Chief Administrator, Auqaf against the order dated 11-1-2002 passed by , learned Special Judge Anti-CorruptiOn, Lahore.
2. Facts of the case as disclosed in the F.I.R. Are that as a result of the inquiry conducted by the Auqaf Department. It was _revealed that the persons mentioned in the F.I.R., that is Muhammad Anwer, Syed Imtiaz Ali Kirmani and Muhammad Ali by preparing the forged orders tried to extend the period of lease for 8--years to 18 years with regard to Waqf land adjacent to the Darbar of Hazrat Daud Bandgi, Sher Garh, District Okara.
3. In support of this petition, learned counsel submits that the case was registered on 13-4-1998; his bail application for bail before arrest was dismissed by this Court on '18-10-2000 but \he surrendered himself on 6-12-2001, that is, one year and 2 months after dismissal of his pre-arrest bail application by this Court vide Criminal Miscellaneous No,3794/D of 1999. Further submits that the respondent after dismissal of pre-arrest bail application by this Court. The respondent approached the Honourable Supreme Court but his petition was also dismissed there. Adds that due to abscondance of the respondent, he could not be tried while his five co-accused whose bail application was also dismissed along with the bail application of this respondent have been tried , 'inasmuch as Imtiaz Ali Shah and, Muhammad Asiam, - Patwari have been convicted and sentenced by the leimed Special Judge Anti-Corruption while Manzoor Ahmad, Muhammad. Sharif and Zia were acquitted by Court. Further adds that only after 2.1 days of surrender respondent was allowed bail by the learned dial Court. Learn counsel submits that under the orders of Honourable the Chief Justice a detailed inquiry was ordered 'into , the allegation levelled by the Auqaf Department against the petitioner and others even after inquiry, the case was not being registered and thereafter on, the-interference of this Court, the case was registered. Further submits that the respondent was found guilty by Aslam Hayat, D.S.P, Deepalpur. Then a Board 'of Investigating Officers headed by Mr. Muhammad Zaman Langrial, S.S.P, Saeed Ahmad Gonda], D.S.P. And Muhammad Mandi Naqvi, D.S.P also held the respondent guilty In fact, according to learned counsel Muhammad Nawaz and. Muhammad Ali mentioned as accused persons in the ,F.I.R. Were fake; persons; the present respondent forged the documents regarding the lease; if the said persons are even produced today ,before this Court he is ready to withdraw this petition for cancellation of bail; the respondent is the main beneficiary in this case, he remained in possession of :'15' squares, of the land belonging to Muslim Atiqat. The respondent had been playing hide and seek with the Courts, after dismissal of his rire-arrest bail petition by this Courr and also from the.
Honourable Supreme Court of Pakistan he approached the , Sessions Judge Lahore as a duty Judge and got -arrest bail on 12-3- ' 2001 which was ultimately dismissed for non-prosecution on'12-5-2001; even seven months thereafter the respondent did not surrender before the Police and never appeared in any Court; he was declared as P.O.; respondent 'is so much influential that the Police did not arrest him, only on the intervention of this Honourable Court, respondent was arrested and that the impugned order of Special Judge Anti-Corruption is perverse and fanciful. In this regard, learned counsel for the petitioner has drawn my attention to paras. 4 and 5 Of the impaired order and submits that in the case of co-accused of the respondent namely Imtiaz the abscondence of 4 months was treated to be aground to refuse bail. Further submits that there is sufficient material available on record to connect the respondent with the commission of the offence and that the judgment relied upon by the trial. Colin while passing the impugned order is not applicable to the facts and circumstances of this case. 'Learned counsel for the petitioner has also drawn my attention to Annexure D according to which challan was handed over to S.P.P on 18- 1'12002 while bail was granted to respondent on 11-1-2002. Adds that if,the ed to respondent is not cancelled, 15 sqaures of land of the Auqaf Department would not be retrieved and it is not an ordinary case of forgery. Further adds that ' the respondent is direct descendent of Hazrat Daud Bandgi so he should have been more 'careful in' this regard. Concluding his submissions, learned counsel for the petitioner submits that if the ed to respondent is not cancelled, there is also apprehension of his abscondance due to his past conduct.
4. Mr. Muhammad Jehangir Wahla, A.A.-G' adopts the arguments advanced by learned counsel for the petitioner with addition that the ,conduct of the respondent does not entitle him to the grant of even after arrest bail, he had been playing hide and seek with the Courts; the allegation against the respondent is that he got removed the original documents; and placed on record other documents, respondent does not deserve any leniency, all the P.Ws. Have deposed against him; respondent has been found guilty in all the investigation and that the remained absconder for a period extending more Than one year.
5. On the other hand, learned counsel for respondent submits that one retired Col. Mukhtar Hussain Shah who is sitting in the Court room today is inimical towards the respondent due to political rivalry and in fact he is pursuing the case against the respondent. Further submits that lessee of the land do exist and they made an application for being impleaded as a party before the Honourable Supreme Court through C.M.P. No,677 of 1998 in C.P.S.L.A. No,1164/L of 1993 titled Chief Administrator of Auquf v. The Federal Land Commission. Adds that respondent was found guilty only in one investigation; the abscondance itself is no bar to refuse the bail, if it is otherwise proved to be a case of further inquiry; the respondent did not appear before the Police due to fear to his life, he has been running from pillar to post, respondent is closely related to his. Co-accused Imtiaz Ali Shah Kirmani, he remained member of Zila Council and Chairman Union Council; respondent has been dragged just to humiliate him; respondent has no previous case to his credit; the complainant in this case is Attique Ahmad Shah, Zonal Nazim Auqaf, Pakpattan but the case is being pursued vigorously by retired Col. Mukhtar Hussain and his near relatives; principles for the grant of bail and recall thereof are totally different, though the respondent has been allowed bail but he is still in Sahiwal Jail in some other case and that section 420, P.P.C. Is bailable while sections 4'68 and 471, P.P.C. Are non-cognizable, in support of his submissions, learned counsel for the respondent has relied upon PLD 1985 SC 382 and 1992 PCr.LJ 409.
6. I have heard arguments of learned counsel for both the sides at length and have gone through the record produced by the Police official. The bail before arrest of the respondent was not confirmed by this Court along with the bail application of other accused on 18-10-2000. Thereafter, the respondent approached the Honourable Supreme Court for bail but the same was refused which fact has not been rebutted by learned counsel for the respondent. It is not understandable how after refusal of bail by the Honourable Supreme Court the Sessions Judge Lahore as a duty Judge allowed pre arrest bail to the respondent. However, the same was cancelled ultimately by the Special Judge Anti-corruption for non-prosecution on 12-5-2001. Respondent had not only been playing hide and seek with this Court but also with the other Courts and the Police. He never surrendered till 6-12-2001 only on the intervention of Honourable the Chief Justice of this Court.
7. The pivotal question for determination in this case is as to whether the learned Special Judge Anti-Corruption, Lahore was right in granting bail to the respondent or not. Respondent was allowed bail only 20/21 days after his arrest while on the other hand in the case of co-accused of the respondent namely .Imtiaz Ali Kirmani was refused to be released on bail with the following orders:-- "The, perusal of the record shows that the petitioner is the main beneficiary of the alleged fraud and forgery. His role is distinguishable from the co-accused who have been released on bail. As per material on the record, there are reasonable grounds to believe that the petitioner has been guilty of non-bailable offences. Apart from above after conciliation of pre-arrest bail by esteemed Lahore High Court, Lahore, the petitioner absconded for period of about 4 months and also absented from trial proceedings. This conduct disentitles the petitioner to avail discretionary relief in the form of bail."
It is important to note here that the present respondent remained absconder for a period of more than one year but he was allowed the concession of bail with the following order:- "The abscondance per se, as laid down in citation 1995 SCM R 1373 is not proof of the guilt. Even otherwise it is considerable that after arrest of the petitioner, a period of one month has passed, which is sufficient detention to balance the abscondance. Challan is yet to be submitted. The learned S.P. States that the same is ready for submission before the Court. Even in that case, the trial has to take much time for its conclusion. In the circumstances, it is required that the discretion be exercised to grant the bail."
' It was also observed by the learned trial Court while granting bail to the respondent as under:- "A perusal of the record shows that the petitioner is neither nominated in the F.I.R. Nor he is lessee of the land. Prosecution is lacking incriminating material against the petitioner. The point that he committed any forgery, needs further inquiry."
' It is thus manifestly clear from a personal of the adored-quoted two orders passed by the trial Court that in the case of Imtiaz Ali Kirmani, the abscondance of four months was treated to be a ground to refuse bail but in the case of the respondent in spite of the fact that abscondance was spreading over more than one year, but bail has been allowed to him. The respondent even did not join the trial rather his co-accused have either been acquitted or convicted. In fact the respondent is not allowing the trial to proceed. He is in Sahiwal Jail in some other case and is sending medical certificates before the learned Special Judge Anti-Corruption, the trial Court in the instant case.
Muhammad Nawaz and Muhammad Ali who were the lessees of the land are non-existent persons.
Even today, an offer was made by learned counsel for the petitioner that if the said Muhammad Nawaz and Muhammad Ali are produced before this Court, he is ready to withdraw this petition but the learned counsel for the respondent did not accept this offer which shows the mala fide' and dubious charcter of the respondent. The respondent was found guilty by the S.S.P. Sheikhupra. He was also found to be an accused in the investigation conducted by a team of one S.S.P. And two D .S . Ps. The team was headed by Mr. Muhammad Zaman Langrial, S.S.P. The respondent had been enjoying the benefits of 15 squares. For 12 years and he was the main beneficiary.
According to Annexure which is a certified copy of the report under section 173 Cr.P.C.
Supplementary challan was sent for trial on 8-1-2002 while the bail was. Allowed to respondent on 11-1-2002 by observer that Echallan is yet to be submitted which is a mis- reading of the record.A reference to Afinexure E would show that the same learned .Judge on 11-1-2002 passed an order that supplementary challan has been shbmitted and the accused be summoned for 19-1-2002 from- Sahiwal Jail. In fact the learned trial Court while granting bail to the respondent paskd contradictory order.
' The contention of learned counsel for the respondent that in fact retired Col. Mukhtar Hussain and his family members are pursuing the case on behalf of the Auqaf Department because Col. Mukhtar was at the relevant time a very influential person in the executive being Advisror to Chief Minister Punjab has no legs to stand for the reasons that the case was got registered by Syed Attique Ahmad Shah, Zonal Nazim Auqaf, Pakpattan Apart from the complainant, Atta Muhammad Bhutta, Manager. Auqaf, Okara, Muhammad Sharaif Lilla, Assistant Director, Malik Ghulam Muhammad, ex-Assistant Director Muhammad lqbal ex-Manager Auqaf appeared as witnesses against the respondent during investigation and their statements are against the respondents.
' Reliance was placed by learned counsel for the respondent on 1992 PCr.LJ 409. I have respectfully gone through the said judgment rendered by a Division Beach of the Peshawar High Court. It was a cast of ineffective tiring, the accused remained in custody for five months, no reasonable grounds existed for believing that the accused had committed the offence with which he had been charged while sufficient grounds existed for further inquiry into guilt of the accused and in these circumstances; the abscondance was held to not operate as absolute bar against claim of bail pending trial in cases falling within prohibitory Caluse of subsections (1) of section 497, Cr.P.C.
Which either fall under first proviso to subsection (1) or those under subsection (2) of section 497, Cr.P,C.
' So far as PLD 1985 Supreme Court 182, it may be noted with due regard that in this case the Honourable appex. Court rules out that if a case of an accused falls under subsection (2)' to section 497, Cr.P.C. Then bail "shall be granted as a matter or right and moreover when there are no reasonable grounds to beliete that the accused has committed a non-bailable offence. It was also ruled out in the precedent that unexplained noticeable abscondance of accused disentitles him to concession of bail notwithstanding with merits of the case.
' I have also respectfully gone through 1995 SCM R 1373, It was a case of appeal against acquittal while the case in hand is bail matter. So, the facts of instant case are totally different from the precedent.
There is no denying the fact that the principles for the grant, of bail and cancellation thereof are totally different but every case has its own peculiar facts and there are no fetters on, the powers of the, superior Courts to recall ing order if the same is arbitrary, fanciful or against the record. To my mind, the order of the learned Special Judge Anti-Corruption, Lahore dated 11-1-2002 impugned herein is perverse, fanciful and against the record and also amounts to discrimination. I have, therefore, no hesitation in recalling the same. Accordingly the order dated 11-1-2002 passed by learned Special Judge Anti-Corruption, Lahore is recalled and the ed to respondent Syed Ali Hussain cancelled.