2013 PLP 2603 (YLR)

ABDUS SATTAR ASGHAR, J.

This composite order will dispose of Criminal Miscellaneous No.2118-B of 2013 (Tanveer Sarwar v. The State and another) as well as Criminal Miscellaneous No.59-CB of 2012 (Muhammad Younas v. The State and another) as both arise out of one and the same F.I.R.

2. Tanveer Sarwar petitioner of Criminal Miscellaneous No.2118-B of 2013 seeks pre-arrest bail in case F.I.R. No.38 of 2011 dated 27-10-2011 in the offences under sections 419/420/467/468/471/161 of the Pakistan Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947 registered at Police Station ACE District Sahiwal, whereas Muhammad Younas complainant/petitioner of Criminal Miscellaneous No.59-CB of 2012 seeks cancellation of pre-arrest bail of Ghulam Farid accused/respondent granted in the above referred F.I.R. by the learned Special Judge Anti-Corruption, Multan vide order dated 18-2-2012.

3. As per F.I.R. lodged on 27-10-2011 on the application of Muhammad Younas complainant it is alleged that about six years back he was in dire need of money therefore to obtain loan he moved an application to Cooperative Bank Chichawatni; that Ghulam Fareed serving as Sub-Inspector Co-operative Societies promised to get him loan from the Bank and for this purpose obtained complainant's signatures and thumb-impressions on some papers and asked him to go out of the Bank premises; that thereafter Ghulam Fareed gave the complainant Rs.65000 in presence of P.Ws. Majid Hussain and Muhammad Ashfaq; that the complainant asked Ghulam Fareed that he was in need of more money as loan whereupon Ghulam Fareed asked him to come again after 2/3 days to receive money; that the complainant time and again went to Ghulam Fareed but he did not pay any amount; that the complainant has deposited Rs.50,000 and 20,000 by two vouchers in the Bank to return the loan; that the remaining amount was misappropriated by Ghulam. Fareed, consequently the complainant's society was held defaulter; that on procuring the record from the department it revealed to the complainant that Ghulam Fareed Sub-Inspector Co-operative Societies in connivance with Tanveer Ahmad (Tanveer Sarwar petitioner) has obtained loan on different occasions in different years in the name of Co-operative Society Patti Shaheen Chak No.110/12-L, Tehsil Chichawatni by preparing forged documents through fraud upon members of the Cooperative Society including the complainant.

4. It is argued by learned counsel for the petitioner Tanveer Sarwar that he is falsely implicated with malice; that the petitioner himself is victim of fraud if any played by Ghulam Fareed Sub-Inspector Cooperative Societies falsely showing the petitioner as one of the members of the Society; that the petitioner never received any amount of loan advanced against the Society rather complainant himself received the amount of the loan as treasurer by issuing a formal receipt; that the petitioner did not prepare any document therefore offences under sections 467/468/471 of the Pakistan Penal Code 1860 do not attract; that the petitioner is ordinary farmer and not a government servant therefore offence under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 do not attract against him; that the offence under section 420 is bailable; that the petitioner did not cheat any person by personation therefore offence under section 419 of P.P.C. also does not attract; that the P.Ws. in their statements under section 161, Cr.P.C. did not incriminate the petitioner; that prosecution has no incriminating material against the petitioner therefore he is entitled to the concession of pre-arrest bail.

5. It is resisted by the learned counsel for the complainant with the arguments that Tanveer Sarwar petitioner with the connivance of Ghulam Fareed Sub-Inspector Cooperative Societies defrauded the complainant through forgery and fabrication for advancement of loan against a bogus Society in the name of the complainant and others; that the recovery of the loan amount is yet to be effected from the petitioner therefore he is not entitled to the concession of pre-arrest bail.

6. Learned counsel for the complainant further argued that (Jhulam Fareed Sub-Inspector being principal accused has been unlawfully allowed concession of pre-arrest bail by the learned Special Judge, Anti-Corruption, Multan vide order dated 18-2-2012 while mis-interpreting the provisions of section 63 of the Cooperative Societies Act, 1925; that the previous sanction of Registrar for lodging prosecution as envisaged under section 63(3) of the Cooperative Societies Act, 1925 is required only for offences under the Act ibid; that the prosecution for offences under the Pakistan Penal Code and anti-corruption laws do not require previous sanction of the Registrar; that the bail-granting order dated 18-2-2012 in favour of Ghulam Fareed respondent is perverse, arbitrary, illegal, untenable and liable to set aside.

7. Arguments heard. Record perused.

8. In the F.I.R. it is alleged that the occurrence took place about 6 years back. Inordinate delay of six years in lodging the F.I.R. is not sufficiently explained. Complainant himself has stated in the F.I.R. that he paid back Rs.50,000 and Rs.20,000 by way of two vouchers to the Cooperative Bank. Record reveals that a sum of Rs.1,89,630 was advanced as loan in the name of Shaheen Cooperative Society Chak No.110/12-L and the said amount was received by Muhammad Younas complainant himself as treasurer of the Society vide receipt dated 15-2-2005 for Rabi crop 2004-2005 and further loan of Rs.1,89,630 for the Khareef crop 2005 through receipt dated 11-7-2005. There is nothing on the record to show that Tanveer Sarwar petitioner had ever received any amount of loan. There is no direct evidence with the prosecution to connect Tanveer Sarwar petitioner with the alleged forgery, fabrication or fraud or any connivance with Ghulam Fareed Sub-Inspector Cooperative Societies in preparation of any bogus society. Marginal witnesses Majid Hussain and Muhammad Ashfaq in their statements under section 161, Cr.P.C. have also not implicated the petitioner as accused of the F.I.R. Tanveer Sarwar is implicated in this case merely on the basis of suspicion therefore he is entitled to the concession of pre-arrest bail. Resultantly, his petition for pre-arrest bail (Criminal Miscellaneous No.2118-B of 2013) is allowed and ad-interim pre-arrest bail already granted to him is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.

9. As regards complainant's Criminal Miscellaneous No.59-CB of 2012 seeking cancellation of pre-arrest bail allowed to respondent Ghulam Fareed by the learned Special Judge Anti-Corruption, Multan vide order dated 18-2-2012, it may be expedient to reproduce hereunder section 63 of the Cooperative Societies Act, 1925:-- "Sec.

63. Cognizance of offences:- (1) No Court inferior to that of a Magistrate of the first class shall try any offence under this Act. (2) Notwithstanding anything con-tained in the Code of Criminal Procedure, 1898, every offence under this Act shall, for the purposes of the said Code, be deemed to be non-cognizable. (3) No prosecution under this Act shall be lodged without the previous sanction of the Registrar, which shall not be given except (after serving a notice on the party concerned and giving him a reasonable opportunity of being heard." Above quoted section 63 deals with the cognizance of offences under the Act ibid. sections 60, 61 and 62 provide the offences under the Act ibid. Subsection (3) of Section 63 reads that no prosecution under this act shall be lodged without previous sanction of the Registrar. Similarly subsection (1) of section 63 bears an expression "Any offence under this Act". It is therefore obvious that previous sanction of the Registrar is required only with regard to the offences under the Act before lodging the prosecution and the prosecution for the offences under the Pakistan Penal Code and Anti-Corruption laws do not require previous sanction of the Registrar. Reliance be made upon:- (i) Muhammad Afzal Khan v. Shahid Hussain Qureshi and others 1988 PCr.LJ 635 and (ii) Sindhi Co-operative Housing Society Ltd., and others v. The Superintendent of Police and others 1989 ALD 519(2).

10. In the light of above legal position, in this case challan against Ghulam Fareed accused has been rightly submitted to the Anti-Corruption Court of competent jurisdiction without taking prior sanction of the Registrar where the trial is in progress and the prosecution has yet to establish its case regarding alleged complicity of Ghulam Fareed respondent with regard to the offences under sections 419/420/ 467/468/471/161 of the Pakistan Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. Majid Hussain and Muhammad Ashfaq P.Ws. in their statements under section 161, Cr.P.C. before the Investigating Officer have simply stated that Ghulam Fareed had paid a sum of Rs.65000 to the complainant in their presence about six years back. They did not utter even a single word with regard to the allegations under sections 419/420/467/ 468/471/161 of the Pakistan Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. Prosecution therefore has yet to establish the charges against Ghulam Fareed respondent through having recourse to evidence. Besides it is noteworthy that complainant himself has stated in the F.I.R. that he has, returned as sum of Rs.540,000 and Rs.20,000 through two vouchers towards repayment of loan to the Bank. Case with regard to the alleged complicity of Ghulam Fereed respondent, therefore necessarily is a matter of further inquiry.

11. Needless to say that object of pre-arrest bail is to protect innocent persons from humiliation, harassment and incarceration on the basis of false implication. Besides it is pertinent to mention that bail once granted cannot be cancelled except on strong and exceptional grounds. Ordinarily, the grounds which are taken into consideration for cancellation of bail are:-- (1) that the applicant has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses; (2) that there is likelihood of witnesses being won over and their evidence being tampered with; (3) that there is likelihood of repetition of the commission of the crimes which the accused had allegedly committed; (4) that the accused was likely to abscond; and (5) that the order granting the bail was arbitrary, capricious and against the evidence available with the prosecution. The petitioner has not been able to establish any one of the above-referred grounds for cancellation of pre-arrest bail allowed to the respondent. I do not find any perversity in the impugned order dated 18-2-2012 passed by the learned Special Judge, Anti-Corruption, Multan.

12. For the above reasons, complainant's Criminal Miscellaneous No.59-CB of 2012 seeking cancellation of pre-arrest bail of Ghulam Fareed, is dismissed. MH/T-16/L Order accordingly.