2010 PLP 1458 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending his arrest at the hands of police, Najam-ud-Din petitioner by way of instant petition has sought his pre-arrest bail in case F.I.R. No.7 of 2008, dated 16-1-2008, offence under sections 420, 468, 471, P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947 registered with Anti-Corruption Establishment, Lahore.

2. Brief allegation against the petitioner as per contents of F.I.R. is that during the year, 2002, while posted as Consolidation Officer, Lahore by abusing his official position as a public servant, in collusion with co-accused, prepared bogus Khata No.153/1 and incorporated the same in Khatooni Pamaish of Mauza Arainan in the name of Muhammad Siddique son of Khushi Muhammad, caste Mayo who afterwards sold the land to various persons. Hence, this case.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has no concern with the commission of alleged offence; that the alleged Khata No.153/1 was never taken into possession in original by the prosecution nor got compared with the handwriting of the present petitioner. It is also argued that the instant case has been got registered by the complainant against the petitioner just to get ulterior motives. Learned counsel further stated that main accused Abdul Majeed Patwari has already been allowed bail by the Senior Special Judge, Anti-Corruption, Punjab, vide order dated 9-1-2009, therefore, the petitioner who is attributed role of lesser magnitude is also entitled to the concession of bail.

4. On the other hand, learned DPG has vehemently opposed this petition. It is stated that name of the petitioner figures in the F.I.R., therefore, he is not entitled to extraordinary relief of pre-arrest bail. It is further argued that there is no malice on the part of the Enquiry Officer who found the petitioner fully connected with the commission of offence; therefore, the petitioner is disentitled to the relief claimed for.

5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.

6. When confronted that whether the signatures on the alleged bogus Khata No.153/1 were got compared with the handwriting of the petitioner, the learned DPG has failed to satisfy this Court. There is also no denial to the fact that the alleged transaction does not bear the signatures of the petitioner. Therefore, in absence of any comparison report from the competent forum, there is nothing on record to connect the petitioner with the alleged offence.

7. Moreover, principle accused i.e. Abdul Majeed Patwari as stated by learned counsel for the petitioner, already stands released op bail by the learned Senior Special Judge, Anti-Corruption vide order dated 9-1-2009. Learned counsel has placed on record bail granting order, which has been perused. Prima facie case of the petitioner is not distinguishable from that of other co-accused to whom bail had been allowed. Therefore, the petitioner is entitled for the concession of bail on the plea of consistency. Reliance in this regard is placed on the dictum of law Muhammad Fazal Ilyas Bodi v. The State (1979 SCMR 9). If otherwise for the sake of arguments, the pre-arrest bail of the petitioner is dismissed on a technical ground that it does not fulfil the obligatory requirements being extraordinary relief which is used sparingly, then too soon after the pronouncement of order by this Court, the accused would be entitled to the relief of post-arrest bail. Respectful, reliance in this regard is placed on the dictum of law Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1381). It would be advantageous to reproduce the relevant part of the above dictum, which reads as under:-- "

Prima facie case of petitioner not distinguishable from that of others to whom bail had been allowed

Held, no useful purpose was likely to be served if bail of accused(respondent) was cancelled on any technical ground because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail--" The case of the petitioner is even on better footing because he is ascribed a role of lesser magnitude as to his co-accused already admitted to bail.

8. For the foregoing reasons, I accept this petition and ad interim bail already granted to the petitioner in terms of order dated 21-5-2008 is hereby confirmed subject to furnishing fresh bail bonds in the sum of Rs.5,00,000 with on surety in the like amount to the satisfaction of learned trial Court. A.R.K./A-58/L Bail granted.