2012 PLP 838 (YLR)

MUHAMMAD ANWAAR UL HAQ, J.

Through this petition, Rana Zaheer Ahmad, Rana Muhammad Aslam, Sheikh Aziz ur Rehman and Sheikh Abdur Rehman petitioners seek pre-arrest bail in case F.I.R. No. 617, dated 25-7-2011, under sections 440, 448 and 148/149, P.P.C., registered at Police Station Sambrial, District Sialkot.

2. Learned counsel for the petitioners contends that the petitioners are innocent and have falsely been roped in this case on the basis of mala fide of the complainant and the police; that there is delay of about three months in lodging of the F.I.R. without any plausible explanation; that there is an allegation in the F.I.R. that the petitioners along with 10/12 other unknown accused persons had caused injuries to the complainant and his maternal uncle namely Sheraz but no medical evidence in this regard is on the record; that petitioner Sheikh Aziz-ur-Rehman is in fact the real owner in possession of the property mentioned in the F.I.R., who purchased the same from one Muhammad Tufail through registered document on 9-12-1990; that regarding the same property, civil litigation is pending between the parties before the Court of competent jurisdiction; that in view of previous civil litigation pending between the parties, offence under sec tion 440, P.P.C. does not attract and as no specific role is assigned to the petitioners, therefore, question of vicarious liability of the petitioners is a matter of further inquiry into their guilt; that an inquiry was conducted by the D.S.P. Circle Sambrial, who has concluded that the F.I.R. is not based upon real facts and he has recommended for registration of case against Nasrullah, S.I./Investigating Officer under Article, 155-C of the Police Order, 2002 on the registration of this false case; that all the offences are bailable except offence under section 440, P.P.C.

3. Conversely, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposing this bail application contends that the complainant is a lady and after reporting the occurrence to Rescue 15 Police in time, she is not responsible for the delay in the F.I.R.; that all the petitioners are specifically nominated in the F.I.R. 'and specification of individual overt act, of the petitioners was not possible, in such like situation; that on 15-5-2002 Sh. Aziz-ur-Rehman petitioner had given his Power of Attorney to Rasheeda Begum regarding the property mentioned in the FIR., who had executed a gift deed in favour of one Fazal Hayat through registered gift deed dated 29-5-2002 and thereafter said Fazal Hayat got sanctioned site-plan in his favour through the concerned T.M.O. Union Council; that on 27-6-2003 Sh. Aziz-ur Rehman petitioner had filed suit for permanent injunction against aforesaid Fazal Hayat but the same was subsequently withdrawn on 10-12-2003; that learned civil court has also passed stay order in favour of the complainant party on 2-11-2009; that pre-arrest bail is an extra-ordinary relief and deeper appreciation of the merits of the case at this stage is not proper; that there is no mala fide or malice on the part of the complainant to falsely implicate the petitioners in this case and that recovery of cash amount and mobile phone mentioned in the F.I.R. is yet to be effected from the petitioners. Learned counsel for the complainant has placed reliance on the cases of Muhammad Azam v. The State (1996 SCMR 71) and Muhammad Arshad v. The State (1996 SCMR 74)

4. Heard. Record perused.

5. Be that as it may, prima facie, there is a delay of about three months in lodging of the F.I.R. civil litigation between the parties regarding the same property is admitted. No specific role is attributed to any of the petitioners, even no Medico-legal Certificate of the complainant and Sheraz injured is on the record. Police record reflects that the detailed inquiry in 1 this case was conducted by the S.D.P.O. concerned on the application of the petitioner Sh. Abdul Aziz, who has concluded that F.I.R. No. 617/11, Police Station Sambrial has been registered wrongly and is not based upon facts and investigation conducted by the Investigating Officer is also not on merits. He has opined that F.I.R. be registered against Nasrullah S.I./Investigating Officer, under Article 155-C of the Police Order, 2002 and other relevant sections, in the light of his report referred above. In view of the above referred finding of the concerned S.D.P.O. and the previous civil litigation pending between the parties, I am of the considered view that application of offence under section 440, A P.P.C. is, prima facie, a matter of further inquiry and culpability of the petitioners can validly be determined after recording of some evidence by the learned trial court. As no specific allegation is available on the record against any of the petitioners, therefore, recovery of unspecified mobile phone and cash amount, is inconsequential in the circumstances of the case. Case-law referred by the learned counsel for the complainant is quite distinguishable than the facts and circumstances of this case.

6. In view of all above, I do not find any convincing reason to send the petitioners behind the bars, therefore, without going into further details/merits of the case, ad interim pre-arrest bail already allowed to the petitioners by this court vide order dated 29-8-2011, is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000 (Rupees fifty thousand B only) each with one surety each in the like amount to the satisfaction of the learned trial Court/Area Magistrate within a period of ten days from today.

7. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition. S.A.K./Z-6/L Bail granted.