2008 PLP 1513 (MLD)

MUHAMMAD ALAM KHAN, J.

Akhtar Mehmood, accused/petitioner has filed this application for the grant of bail before arrest in case F.I.R. No.11, dated 26-1-2005 registered in Police Station Daraban, District D.I. Khan under sections 420/468/471, P.P.C.

2. Facts of the case giving rise to this BBA are that the petitioner has sold Datsun Pick-Up No.5580/KTA to one Pir Ghulam, resident of FR Sherani, District D.I. Khan on easy instalments. It was mutually agreed that in case of default in the payment of instalments, the petitioner would be at liberty to take back the said vehicle and the already paid instalment would stand confiscated in favour of the petitioner. Since Pir Ghulam had failed to abide the commitment, the petitioner took back the said Vehicle due to which case F.I.R. No.3, dated 13-1-2008 was registered against the petitioner at the instance of Pir Ghulam under section 381-A/34, P.P.C. in consequence whereof the petitioner was arrested and subsequently released on bail. During investigation of the above referred case, the police seized another vehicle Land Cruiser No.EC/9122/Sind. Model 1991 under sections 523/550, Cr.P.C. on the pretext of it being stolen property. The matter was inquired into under section 156(3), Cr.P.C. and resultantly case F.I.R. No.11, dated 26-1-2005 was registered in which the petitioner seeks pre arrest bail. During its pendency, the District Police Officer D.I. Khan through a letter, dated 17-1-2008 addressed to the Collector, Citizen Police Liaison Committee, Central Reporting Cell, Sindh Governor's Secretariat Karachi requested for furnishing full particulars/details of the vehicle in question, who vide letter, dated 21-1-2006 informed the D.P.O. D.I. Khan that neither the said Land Cruiser was stolen nor snatched but was duly owned by the petitioner. Likewise, the DPO D.I. Khan also addressed another letter, dated 22-1-2008 to the Director, Forensic Science Laboratory Peshawar so as to verify the genuineness of chassis and engine numbers of the said, vehicle, who vide report, dated 23-1-2008 replied that the chassis number of the vehicle in question was deciphered and in fact its number was LJ-78-0012000 before chemical analysis, whereafter the petitioner was booked for the offence in hand.

3. Apprehending arrest, the petitioner applied to the learned Sessions Judge D.I. Khan for the grant of Bail Before Arrest but remained unsuccessful vide order, dated 1-3-2008. Hence this petition.

4. Learned counsel for the petitioner submitted that the petitioner is a bona fide purchaser of vehicle No.EC/9122 through sale agreement deed, dated 23-7-2007 duly witnessed by the marginal witnesses and it has been duly stood proved from the report of Citizen Police Liaison Committee, Central Reporting Cell Karachi that the vehicle was neither snatched nor stolen. He urged that entire record of the said vehicle was taken into possession by the Investigating Agency and after its due examination by the Excise and Taxation Officer, it was verified to be genuine and thus the vehicle was allowed to be transferred in the name of the petitioner after consulting the report of FSL Quetta, dated 29-3-2007. He argued that Pir Ghulam Complainant of the earlier case F.I.R. No.3, dated 13-1-2008 of Police Station Daraban under section 381-A/34, P.P.C. has sworn on affidavit that though the matter was reported to the police but has not yet opted for registration of the case which was lodged only under the pressure of the Mr. Sanaullah Khan S.H.O. of Police Station Daraban. His submission was that the petitioner being last possessor of the vehicle in question having no claim by someone else was entitled to the discretionary relief of bail before arrest coupled with the fact that the report of FSL Quetta in his favour was earlier in time to that of FSL Peshawar.

5. In rebuttal, the learned Deputy Advocate-General appearing on behalf of the State opposed the grant of bail before arrest to the petitioner on the ground that the petitioner is reasonably linked with the offence charge with. It was also argued that no mala fide on the part of prosecution has been pointed out by the petitioner and that he should surrender to the local police and seek post-arrest bail.

6. I have gone through the available record and considered the arguments advanced at the bar.

7. Perusal of the record reveals that the petitioner is a bona fide purchaser of the vehicle in question vide sale agreement deed, dated 23-7-2007 duly witnessed by its marginal witnesses and attested by the Notary Public Karachi. It is also proved from the report of Citizen Police Liaison Committee Central Reporting Cell Karachi that the said vehicle was neither snatched nor stolen rather the same was having chassis No. LJ-78-0012000 duly owned by the petitioner. It was also a matter of record that the Excise and Taxation Officer after due verification has allowed the transfer of the vehicle in question in the name of the petitioner. Thus at present the alleged tampering of chassis number of the said vehicle cannot be conclusively determined and prima facie, he is held entitled to the grant of Bail Before Arrest. Reliance in this respect is placed on the case-law reported as Khizar Hayat Tiwana. v. The State (2005 YLR 1666), Sohar Ashraf Farooq v. The State (2005 PCr.LJ 553), and Bashir Ahmad Patwari. v. The State (1998 PCr.LJ 347).

8. The contention of the learned Deputy Advocate-General that neither the petitioner has proved the mala fide on the part of the prosecution nor the same is discernible from record of the case is also without any force. When the documents of title regarding the vehicle were presented before the I.O. who after due investigation was duty bound to have formed a correct opinion, which is missing in this case, which constitutes mala fide on the part of the Investigation Agency.

9. Consequently, I accept this bail before arrest application and confirm the pre-arrest bail allowed to the petitioner by this Court on 10-3-2008. He is present in Court and is directed to associate with the Investigating Agency as and when required. H.B.T./123/P Bail confirmed.