' This order shall dispose of Criminal Miscellaneous No,253/B of 2001 and Criminal Miscellaneous No,254/B of 2001 as common questions of law and facts are involved in these petitions.
2. In Criminal Miscellaneous No,253/B of 2001, the petitioners Syed Manzar Abbas, Syed Ali Abbas, Syed Mukhtar Shah and Syed Shamman Shah are seeking post-arrest bail in case F.I.R. No,352, dated 11-10-2000 registered at Police Station Chanab Nagar, District Jhang at 8-30 p.m. For the offences under sections 324/452/440/148/ 149, P.P.C. And section 11-B, Arms Ordinance and also under section 7 of the Anti-Terrorism Act, 1997, at the instance of complainant Riaz Ahmad, for an occurrence of the same day which is alleged to have been taken place at 4-00 p.m. In which 60 accused heavily armed are alleged to have attacked the complainant party to dispossess them from the land in dispute. Out of 60 accused 35 are nominated and 25 accused are unknown. The challan has been submitted only against 5 accused, including the petitioners and one Mazhar Shah who has been granted bail by the trial Court. Out of the rest of 55 accused, 28 have been declared innocent and 27 accused have not been arrested so far. In this incident no one was injured and no recovery was effected from the petitioners. The police has recovered 430 empties from the spot. It is alleged to be a case of unsuccessful attempt to take possession of the land in dispute. The petitioners were arrested on 16-11-2000. Their application for the grant of post-arrest bail has been dismissed by the Special Judge, Anti-Terrorism, Faisalabad, on 22-12-2000. The case of the complainant in the present case is that about 10 years ago the complainant party had purchased the land in dispute from Mst. Ghulam Kubra and Muhammad Hussain in Mauza Sanghra and the adjacent land was purchased by Nisar Ahmad Bhalli etc. (the complainant side of case F.I.R. No,362, the subject-matter of Criminal Miscellaneous No,254/B of 2001 from Abdul Karim etc. And the accused side were the illegal occupants of the land purchased by the complainant's side in both these petitions.
3. In Criminal Miscellaneous No,254/B of 2001, Syed Manzar Abbas and Ali Abbas are seeking post- arrest bail in case F.I.R. No,362, dated 17-10-2000, registered at Police Station Chanab Nagar, for the offences under sections 458/380/440/337/148/149, P.P.C. At the instance of complainant Nadeem son of Rafiq for an occurrence, dated 11-10-2000,_in which the complainant side was allegedly attacked by 20 accused who were allegedly heavily armed, 12 of the accused are nominated and 8 are unknown accused. The challan has been submitted against three accused including the petitioners and co-accused Mazhar who was granted bail by the trial Court. The petitioners were arrested on 16-11-2000. Their application for the grant of post-arrest bail has been dismissed by the Special Judge Anti-Terrorism on 22-12-2000. The complainant Nadeem in this case alleges that his uncle Nisar Ahmad Bhalli etc. Purchased the land a few years ago in Mauza Sanghra and the accused side was the illegal occupants of the same.
4. In both these petitions the subject-matter of the dispute between the complainants and the accused side i,e, the agricultural lands in dispute are situated in Mauza Sanghra and the occurrence also took place on the same day. In both these cases the accused side is alleged to have attacked at the Deras of the complainants to dispossess them from the land in- dispute.
5. We have heard the learned counsel for the petitioners, the State, the complainant and also seen the record with their help.
6. It is contended by the learned counsel for the petitioners that the petitioners have been involved in these cases falsely, just to deprive them of their lawful possession, such a large number of accused while being armed heavily are alleged to have attacked the complainant side, yet nobody received any injuries and no recoveries have been effected from the petitioners and in the incident alleged in the F.I.R. No,362 not even the empties have been recovered from the spot which makes the entire prosecution story as false and had there been any attempt to dispossess the complainant side, the incident would have resulted in the injuries to the complainant side and the complainant side would have been physically dispossessed as they could not have successfully resisted the alleged attack by such a large number of the accused. Narrating the background of the dispute it is submitted that the complainants' side are the vendees from Mst. Ghulam Kubra etc. And after the purchase they moved applications before the Revenue Authorities for the partition of the land in dispute and the partition proceedings were objected to by the accused side through a civil suit for declaration that the partition proceedings being conducted by the Revenue Authorities cannot be allowed to be continued as the applicants/vendees were not co-sharers in the Khata and they cannot seek partition. The civil suit instituted by the accused side is pending in the Civil Court at Jhang and the learned Civil Judge vide his order, dated 13-3-1998 while confirming the stay order in favour of the plaintiffs/accused side through a detailed order held that Mst. Roshanai and Mst. Ghulam Fatima were limited owners but despite that their names were entered in Jamabandi as full owners and "according to the record, the land in dispute is in physical possession of the tenants. It shows that the physical possession of the land in dispute was never transferred to the alleged donees Roshanai and Ghulam Kubra. The partition proceedings also remained pending and are still pending between the parties. It is found from these circumstances that the plaintiff is, still in possession of the disputed property as co-sharer". Learned counsel has taken us through various paragraphs of the order, dated 13-3-1998 of Civil Judge 1st Class, Jhang whereby the stay order was confirmed in favour of the plaintiff/accused side (portion of which has been reproduced above) to contend that it was the accused side which was in possession of the land in dispute and the whole drama of the false involvement of the accused through these false criminal proceedings was initiated by the complainants just to oust the accused side from the possession of the lands in dispute. It is further submitted that after the initiation of the criminal proceedings, the petitioners Were arrested and their tenants who were in possession of the land in dispute, as recorded by the Civil Judge in his order, dated 13-3-1998, were forcibly ousted from possession and in this regard the petitioners have instituted a Constitutional petition for the restoration of the possession which is pending in this Court. It has also been argued that case F.I.R.
No,362 was lodged after a delay of six days without any explanation specially when for the same occurrence case F.I.R. No,352 was lodged on the day of occurrence.
7. The contentions have been opposed by the learned counsel for the State and the complainant.
Learned counsel for the complainant has argued that the complainant side instituted partition proceedings on 2-1-1990 before the Tehsildar Chiniot which were finalized by the Revenue Authorities on 18-7-2000 and the joint Khata was partitioned by the District Collector on 31-1-2000.
The warrant of possession was issued by the Assistant Collector on 6-5-2000, the appeal instituted by the accused side was dismissed by the Commissioner, Faisalabad Division on 4-7-2000 and the Revenue Authorities with the help of the police put the complainant side in actual physical possession of the land in dispute on 18-7-2000. Learned counsel for the complainant has also submitted that the order, dated 13-3-1998 of the Civil Judge, Jhang of confirmation of stay order was challenged through an appeal by the complainant and the learned Additional District Judge, Faisalabad vide his judgment, dated 5-10-1998 accepted the appeal holding that the Civil Court had no jurisdiction to stay the partition proceedings pending before the Revenue Authorities, consequently, partition proceedings were completed and finalized and possession was delivered to the complainant side. It has also been informed to us that the petitioners' writ petition for the registration of a criminal case for the alleged dispossession was dismissed by the High Court on 15-2-2001. Learned counsel for the complainant has thus argued that after the delivery of possession to the complainant side by the Revenue Authorities the petitioners and the other accused were no more in possession of the land in dispute and on the day of occurrence all the accused heavily armed attacked the complainant side to physically dispossess them and there is enough material available on the record to connect the petitioners with the commission of the offences as alleged against them. It is further submitted that besides the recoveries of such a large number of empties from the spot, 2 motorcycles belonging to the accused were also taken into possession by the police as the same were left behind by the accused while running away on seeing the police party. In regard to the non-recoveries from the petitioners, it is submitted that due to very short period of remand which was npt extended by the learned Magistrate, police was unable to affect recoveries from the petitioners. In the end it has been submitted that the co- accused Mazhar has been granted bail by the trial Court as the trial Court concluded that he was merely involved for the offence under section 109, P.P.C.
We have given anxious consideration to the facts of the present cases. We are of the view that it cannot be said at this stage that the petitioners have been involved falsely in the present case because the material available on the record points towards aggression by the accused side.
However, a large number of accused are involved in the present cases and it is for the trial Court to determine as to which of the accused sent up to face trial by the police are guilty, after recording the evidence. At the same time, we are of the view that the involvement of the petitioners in case F.I.R. No,352 under section 324, P.P.C. Is a matter of further inquiry because despite the attack by such a large number of heavily armed accused nobody sustained any injuries. Had there been any intention to kill, the incident would have resulted in fire-arm injuries to one or more persons belonging to the complainant side. The rest of the offences do not fall within the prohibitory clause of section 497 of the Cr.P.C. And the grant of bail in such-like cases is a rule and the withholding of the same is an exception. The petitioners are behind the bars for the last more than three months and the bail cannot be withheld merely as a punishment. Similarly in case F.I.R. No,362 the commission of the offence of section 458, P.P.C. Of lurking house-trespass by night is prima facie not made out from the material available on the record. Possibility cannot be ruled out that this offence may have been added just. To make the case fall within the prohibitory clause of section 497, Cr.P.C. The other offences do not fall within the prohibitory clause of section 497, Cr.P.C. And as mentioned above, the bail in such-like cases cannot be withheld merely by way of punishment.
8. In view of the abovementioned, the applications are allowed and the petitioners in both the petitions are granted bails subject to their furnishing bail bonds in the sum of Rs,1,00,000 each with two local sureties each in the like amount to the satisfaction of the trial Court.