PLJ
2010 Cr.C. (
Present:
M.A. Zafar, J.
MUHAMMAD
IBRAHIM--Petitioner
versus
STATE--Respondent
Crl.
Misc. No. 1775-B of 2009, decided on 18.5.2009.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
497--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471 r/w P.C.A., Ss.
5/2/47--Bail--Grant of--Prayer for--Petitioner was in custody since he was
arrested--Offence with which he has been charged does not fall within
prohibitory clause and same is maximum punishable up till seven years--Petitioner
was languishing in jail for last three years and ten months and he was not
responsible for causing delay in conclusion of trial--No progress in trial took
place on account of injunctive order obtained by complainant--Held: Early
conclusion of trial is right of every accused and an accused cannot be put at
mercy of prosecution or complainant--Prosecution has yet to take start by
producing its evidence--Concept of pre-trial release of accused was developed
on three presumptions--Firstly, accused was presumed to be innocent till he was
found guilty--Secondly, accused should have right to prepare his defence and
prove his innocence before Court of Trial--Thirdly, accused should not be
punished before finding him guilty--Petitioner had already undergone a period
of about four years without any trial and what to talk about conclusion of
trial, even its commencement in near future is not in sight--Petition accepted. [Pp. 501 & 502] A & B
Rana
Zubair Afzal, Advocate for Petitioner.
Ch.
Imran Raza Chadhar, Advocate for Complainant.
Malik
Nazar Abbas, DPG with Abdul Sattar for State.
Date
of hearing: 18.5.2009.
Order
The
petitioner, Muhammad Ibrahim seeks post arrest bail in case FIR No. 24/2005
dated 28.3.2005 for offence under Sections 420/468/471 PPC read with Section
5/2/47 P.C.A., registered with Police Station Anti-Corruption Establishment,
Lahore at the instance of Shaukat Ali complainant. This is 2nd bail
application, earlier Crl. Misc. No. 4594-B-06 was dismissed vide order dated
17.01.2007.
2. According to the allegations the father of
complainant Jagmal son of Bhambo had been allotted land measuring 93-Kanals
14-Marlas in village Ladhar, Lahore Cantt., District Lahore, his father died on
12.8.1977, whereupon an inheritance mutation was sanctioned in the name of
complainant and his father's other legal heirs; that on account of
consolidation proceedings carried out in the year 1992, the inherited property
measuring 93-Kanals 14-Marlas and the property purchased by the complainant and
other co-sharers later on totaling 122-Kanals and 18 Marlas came to their
share, which was in their possession; that out of the total holding i.e.
122-Kanals 18-Marlas, a deal was struck with DHA Lahore for the sale of
97-Kanals; the said sale took effect and regular sale deed by means of Document
No. 4078, Bahi No. I, Volume No. 325, was executed on 22.5.2004; that
thereafter one Akbar Ali son of Fajar Khan, a Patwari in the Irrigation
Department, maneuvered an application by one Ibrahim son of Jagmal, resident of
village Rampur, Tehsil Daska District Sialkot to the EDO (R) that a piece of
land measuring 35-Kanals 11-Marlas of his father Jagmal son of Badroo had
wrongly been granted to Jagmal son of Bhambo and prayed that the same be got
restored to him; the said application was marked by the EDO (R) to the
Consolidation Officer, Muhammad Anwar, Peshi Qanungo and Ch. Mumtaz Ahmed,
DDOC, Lahore in connivance with Akbar Ali, Irrigation Patwari and Muhammad
Ibrahim son of Jagmal, the applicant, got new mutation entered in his name and
got the record corrected. The complainant also alleged that he was kept
completely in the dark about any application thus moved by Muhammad Ibrahim and
the resultant order dated 6.5.2004 passed thereon for correction of record
(Sihat-e-Inteql) and through this exercise he had been deprived of his valuable
land measuring 35-Kanals 11-Marlas. Resultantly, the instant FIR had been
recorded.
3. Learned counsel for the petitioner submits
that the petitioner was arrested on 5.7.2005 and since then he is in custody
and the delay in conclusion of the trial cannot be attributed to him. He
further submits that co-accused M. Akbar Ali whose bail was rejected by this
Court vide order dated 16.1.2006 passed in Crl. Misc. No. 9038-B-05 was allowed
bail by the Hon'ble Supreme Court of Pakistan vide order dated 2.3.2006 passed
in Crl. Petition No. 72-L-06 and following the rule of consistency, the
petitioner is also entitled to be released on bail.
4. On the other hand learned counsel for the
complainant submits that the complainant can produce his entire evidence before
the learned trial Court within a period of one month, if so directed. He
further submits that the petitioner being beneficiary of he
entire fraud, is the main accused.
5. After hearing learned counsel for the parties
and perusing the record, I have noticed that the case of the present petitioner
is quite distinguishable from the case of Akbar Ali co-accused, since released
on bail by the Hon'ble Supreme Court of Pakistan vide orders dated 2.3.2006. Challan
in this case was submitted on 17.2.2006 and thereafter the matter is being
adjourned for one reason or the other particularly due to non-appearance of the
co-accused and the prosecution had been seeking adjournments for submission of
complete challan. However, the complainant challenged the letter dated 9.3.2007
dropping the case by Director General Anti-Corruption Establishment Punjab by
filing a Writ Petition No. 2866/07 in this Court. The operative part of the
aforesaid letter is as under:
"The
case was reinvestigated and examined in this Directorate. The W/Director
General ACE Punjab has been pleased to drop the case. The authority further
approved that final report prepared by DD(G)HQ be forwarded to SMBR for
necessary action including making necessary correction in the record and
initiating disciplinary action against DDOC on the ground of passing order of
mutation without lawful authority."
6. In the aforesaid writ petition, this Court
vide order dated 30.3.2007 directed the learned trial Court not to take any
further step in pursuance of the Additional Director's Letter dated 9.3.2007 or
on the application of Respondent No. 4 dated 13.3.2007. Needless to mention
here that Mukhtar Ahmed Chaudhary co-accused of the petitioner had moved an
application before the learned Special Judge Anti-Corruption Establishment,
7. For the foregoing reasons, the petition is
accepted and the petitioner is directed to be released on bail subject to his
furnishing bail bonds in the sum of Rs.1,00,000/- (one lac) with one surety in
the like amount to the satisfaction of learned trial Court.
(Sh.A.S.) Petition accepted.