2003 PLP 1573 (YLR)

Ch. Muhammad Khan for Petitioner. Mian Shahid Iqbal for Respondents. Haji Muhammad Akram Nasir for the State. Abdur Razzaq petitioner got a criminal case registered vide F.I.R. No.299 of 2002 on 26‑8‑2002, under sections 420/ 467/468/471, P.P.C. registered with Police Station Civil Lines, Gujranwala against Shah Nawaz, respondent No. 1 with the allegation that respondent No. 1 showing himself general attorney of Mst. Maryam Bibi, owner of plot situated in Mauza Theri Sansi, District Gujranwala, entered into an agreement with the petitioner for an amount of Rs.6,50,000 out of which he received Rs.500,000 (Rupees five lacs) as an earnest money and executed agreement to sell on 18‑1‑1996 and the remaining amount was to be received at the time of execution of sale deed. The petitioner filed a suit for specific performance on 23‑7‑1996 and respondent No.1 after receiving the balance amount filed a conceding written statement on 28‑7‑1996 on which the suit was decreed on the same day. On 5‑6‑1996 Muhammad Rafiq filed an application under section 12(2), C.P.C. for setting aside of the decree claiming himself to be vendee of the plot with consideration. On which, the petitioner inquired about the genuineness of the agreement to sell and after filing Writ Petition No.8746 of 2002 instant case was got registered respondent No.1 was declined pre‑arrest bail which was declined to him by the learned Additional Sessions Judge, Gujranwala on 27‑8‑2002, on which he was arrested. Thereafter he was also declined after arrest bail by the learned trial Court on 23‑9‑2002. He once again moved petition for after arrest bail which was allowed by the same learned Additional Sessions Judge vide order dated 19‑10‑2002 and the bail granted to respondent No.1 by this order has been sought to be cancelled through the instant petition. In support of the petition learned counsel for the petitioner contends that all the grounds were available and considered by the learned Additional Sessions Judge when he dismissed the petition for pie‑arrest bail and only after a month on the same grounds respondent No. 1 was not entitled for grant of after arrest bail. Reliance has been placed on 1999 PCr.LJ 218 (Muhammad Sultan v. The State and another). Secondly, there is no mala fide on the part of the complainant for false implication of respondent No.1 who is habitual offender and is involved in two other cases vide F.I.Rs. No.171 of 2001 and No.332 of 2002 of similar nature registered at Police Station Civil Lines, Gujranwala and he has been found guilty during the investigation and mere fact that the offence does not fall under the prohibitory clause respondent No. 1 was not entitled for concession of bail; that the other ground prevailed with the learned Additional Sessions Judge was of sickness but respondent No. 1 was not suffering from a disease for which the treatment was not available in jail. Conversely, the petition has been opposed by learned counsel for respondent No. 1 by arguing that instant application is not competent and by placing reliance on 1991 PCr.LJ 13 (Muhammad Nasir Butt v. State) 1976 PCr.LJ 324 (Mirza Khan v. Lal Khan and another) 1988 SCMR 918 (Akmal Masih and others v. Salamat Masih and 4 others) and AIR 1925 Nagpur 228 (Local Government v. Gulam Jilani), has argued that the petitioner should have approached the same Court at the first instance which had granted the bail; Secondly, the challan of the case is complete, but purposely has not been submitted otherwise after submission of the challan the bail is not to be cancelled. Reliance has been placed on PLD 1989 SC 585 (Muhammad Ismail v. Muhammad Rafique and another). It has also been argued that the main accused Mst. Maryam Bib: and Muhammad Rafique have been declared innocent and case against respondent No. 1 is of further inquiry; further argued that consideration of bail before arrest and bail after arrest is entirely different and the medical certificate has not been challenged which is still in act. Reliance has been placed on PLJ 1975 Criminal Cases Karachi 40 (Sarfraz Ahmad and another v. State and another) that there is no allegation of misuse of concession of bail, therefore, the bail should not be cancelled. It has also been argued that out of two cases, in one case respondent No.1 has been acquitted while in the second F.I.R. no role has been attributed to him; that the offence does not fall under the prohibitory clause, therefore, in view of the case i.e. 1991 PCr.LJ 1856 (The State v. Muhammad Qasim and 2 others) and 1991 PCr.LJ 241 (Ghulam Rasool v. Khadim Hussain and others) respondent No.1 is entitled to remain on bail. I have given due consideration to the contentions raised at the bar and examined the case‑law and perused the record. Respondent No.1 has been found guilty during the investigation. He has been attributed specific role having deprived the complainant of huge amount. Mere on the fact that the offence does not fall under the prohibitory clause, he cannot claim bail as matter of right. Declaring Mst. Maryam Bibi and Muhammad Rafiq innocent during the investigation is of no help to the present respondent. From the perusal of the F.I.R. it is clear that the allegation against respondent No. 1 (sic) produced agreement to sell signed on his own. He received the amount and subsequently sold the plot to Muhammad Rafiq. He has not moved application under section 12(2), C.P.C. in the trial Court challenging that the decree was obtained by the petitioner through fraud. The story narrated by respondent No. 1 is afterthought. He was already involved in two cases. The case in which learned counsel for respondent. No. 1 claims that he was acquitted of the charge was on the statement of the complainant that his grievance has been redressed. On the same grounds learned Additional Sessions Judge had declined the request for pre‑arrest bail and after a few weeks there was no fresh ground for grant of after arrest bail to the respondent. He is involved in a heinous case. The case‑law referred to by learned counsel for respondent No. 1 is not applicable to the circumstances of the instant case, therefore, he was not entitled for concession of bail and the learned Additional Sessions Judge has not exercised his power properly. Resultantly, the petition is allowed and the bail granted to respondent No. 1 is hereby cancelled. H.B.T./A‑726/L Bail cancelled.