2007 PLP 2542 (YLR)

MUHAMMAD SAYEED AKHTAR, J.

This revision petition is directed against the judgment dated 25-3-2000, passed by the learned Additional District Judge, Bhalwal, District Sargodha, upholding the judgment/decree of the learned trial Court dated 3-5-1992.

2. Plaintiffs/respondents filed a suit on 9-9-1987 for declaration to the effect that they were legal heirs of Mst. Rasoolan pre-deceased daughter of Murad (deceased) and entitled to their share in the agriculture land measuring 220-1/2 Kanals, left by their maternal grandfather, Murad. The mutation of Inheritance No.322 dated 16-12-1979 depriving them of their share was illegal, collusive, based on fraud and misrepresentation. The further sale by defendant No.2 to defendant No.3, was also illegal. It was averred in the plaint that Murad son of Khuda Yar died in 1968. His mutation of inheritance was attested in 1979. The plaintiffs being daughters of pre-deceased Mst. Rasoolan and defendants Nos.1 and 2 being sons of pre-deceased Sardara, (both daughter and son of Murad) were entitled to their share in the inheritance of Murad (deceased). However, the defendants in collusion with the Revenue authorities got the mutation of Inheritance No.322 illegally attested in their favour. The defendant No.2 further sold his share to the defendant No.3, which too was against law.. The defendant/respondent contested the suit raising preliminary objection that the suit was time-barred and the plaintiffs had no locus standi. On merits it was alleged that the plaintiffs had no blood relationship with Murad (deceased). The incorrect pedigree-table has been given.

3. Out of the pleadings of the parties, following issues were framed:-- (1) Whether the plaintiffs are jointly owner in possession of the suit-land with the defendant as being legal heirs of Murad deceased? OPP. (2) Whether the mutation of Inheritance No. 322 dated 16-12-1979 attested in favour of defendant is illegal, void, collusive, fictitious based on fraud and misrepresentation and ineffective upon the rights of the plaintiff? OPD. (3) Whether the suit is time-barred? OPD. (4) Whether the plaintiffs have no locus standi and cause of action? OPD. (5) Whether the suit - is not maintainable in its present form? OPD. (6) Whether the defendants have paid any proprietary value of the suit-land? If so, to what effect? OPD. (7) Whether the defendant No.3 is the bona fide purchaser of the suit-land for reasonable consideration? OPD. (8) Relief. The learned trial, Court after recording the evidence decreed the suit of the plaintiffs/respondents on 3-5-1992. The defendants/petitioners remained unsuccessful in their appeal before the learned Additional District Judge, on 25-3-2000.

3. Learned counsel for the petitioner contends that the Courts below have not decided the case in its true perspective. He referred to succession certificate Exh.D.14, in which Muhammad Yar, Mst. Bharai and two others were declared as legal heirs of Murad son of Khuda Yar. He urged that the said certificate was never challenged by the plaintiffs before any forum. He also referred to birth certificate of Mst. Raufan Exh.P.9 showing that originally it was Suban which has been crossed out and instead Raufan was mentioned. He maintained that Ghulam Muhammad P.W. is related to respondents and thus is interested witness. He further argued that the respondents were daughters of one Salhi and not of Mst. Rasoolan. The Courts below have misread the evidence.

4. Conversely, learned counsel for the respondents defended the impugned judgments.

5. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The case set out by the plaintiffs in their plaint and in their evidence is that they are daughters of Mst. Rasoolan, the pre-deceased daughter of Murad. The defendants 1 and 2/petitioners are sons of Sardara, also pre-deceased son of Murad. Mst: Rasoolan is entitled to inherit the land along with Sardara, her brother, D. W.1 and D. W.2 deposed that Sardara, the father of the defendants/ petitioners was alive at the time of the death of Murad. This fact is belied by the mutation Exh.P.2 dated 16-12-1979 being relied by defendants/petitioners,- which clearly shows that Sardara pre-deceased Murad. Even if Sardara is considered to be alive at the time of death of his father, Murad, still Mst. Rasoolan is entitled to inherit under section 4 of Muslim Family Laws Ordinance, 1961. The next question is whether Mst. Rasoolan the mother of the plaintiffs was the daughter of Murad, deceased. Mst. Faroogan, one of the plaintiffs appeared as P.W.2 and deposed that she and her sister Raufan are daughters of Mst. Rasoolan, who was daughter of Murad. Mst. Rasoolan had a sister named Raji who died issueless. The father of the defendants 1 and 2 and the mother of the plaintiffs were brother and sister. Both of them pre-deceased their father Murad. She further deposed that after the death of their mother Rasoolan, their father Manzoor married Mst. Salhi. She categorically stated that she and her sister were daughters of Mst. Rasoolan and not Mst. Salhi. She denied that they had knowledge about the withdrawal of the money from the bank by the defendants/ petitioners. P.W. deposed to the same effect. The case set up by the defendants is that the plaintiffs/respondents are daughters of Mst. Salhi (second wife of Manzoor) and not Rasoolan. This fact does not find any corroboration either from any document on the record or otherwise. The defendants 1 and 2/petitioners never entered in the witness-box to rebut the case of the plaintiffs/respondents. Only they could clear the position. There is nothing on the record from which it can be inferred that the plaintiffs/respondents are not the daughters of Mst. Rasoolan. Both the Courts below have concurrently decided against the petitioners. I do not find any fallacy in the judgments of the Courts below. As far as the question that petitioner No.3 is the bona fide purchaser, suffice to i say- that the defendant No.2 could not alienate the share of the plaintiffs. Defendant No.3 purchased only the share of the respondent No.2. No title regarding the share of plaintiffs passed to defendant No.3 P.W.2 categorically stated that they had no knowledge about the withdrawal of the money from the bank by the defendants. Even otherwise, she was not confronted with the alleged succession certificate. The plaintiffs and defendants Nos.1 and 2 being daughters and sons of Mst. Rasoolan and Sardara respectively (the pre-deceased daughter and son of Murad) are entitled to receive the share which their mother and father would have received under section 4 of the Muslim Family Laws Ordinance,. 1961.

6. For what has been discussed above, this revision petition is dismissed leaving the parties to bear their own costs. M.H./A-98/L?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed. 2007 Y L R 2545 [Lahore] Before M. Bilal Khan, J HASEEB AHMAD KHAN

Petitioner Versus THE STATE

Respondent Criminal Miscellaneous No.2822-B of 2007, decided on 22nd May, .2007. Criminal Procedure Code (V of 1898)

S.497

Customs Act, (IV of 1969), Ss.14-A, 16, 32-A, 156(1) (9) & 178

Bail, refusal of

Shipping bill was arranged and got issued by accused, thereafter container was got released by him and allegedly in connivance with the staff, its number was ( scratched and replaced with number of another container

Involvement of accused in the whole transaction, prima facie, was apparent, in circumstances

Accused was nominated in the first challan and during investigation prosecution had collected sufficient material qua accused, which incriminated him directly in the commission of offence, which had resulted into heavy loss to government exchequer

Accused, according to prosecution had demanded Rs.22 lac for clearance of the container

Offence with which accused had been charged, though did not attract the prohibitory clause of S.497(1), Cr.P.C., but in view of circumstances of the case and the ruthless manner in which the State exchequer had been ravaged, accused could not claim bail as of right

Mere fact that offence not attracting the prohibitory clause of S.497(1), Cr.P.C., was not sufficient by itself to release an accused on bail

Concession of bail could not be granted to a swindler or plunderer of the national exchequer for the simple reason that offences did not attract the prohibitory clause of S.497, Cr.P.C. [p. 25461A Ch. Ehsan-ul-Haq Virk for Petitioner. Ch. Muhammad Khalid for Customs Department. Liaquat Ali Deputy Superintendent Customs Department with record. ORDER M. BILAL KHAN, J,

Haseeb Ahmad Khan son of Naushad Ahmad Khan, petitioner, by filing this petition, seeks post-arrest bail in case F.I.R. No.22 of 2004 dated 17-7-2004, -registered with Police Station I & P Cell Customs House, Lahore, for offences under sections 14-A, 16, 32-A, 156(1)(9) and 178 of the Customs Act, 1969.

2. The facts of the case as narrated in the F.I.R. registered at the instance of Farhat Bukhari Deputy Superintendent Customs, are that on receipt of a spy information that M/s. Al-Mehmood Sewing Machine Company Larex Market, Lahore had imported electronic goods and electric appliances from China through Container No.SCZU-566376-0 and for their clearance Messrs KSK Enterprises had filed bill of entry to Lahore Dry Port, but the same had been released without payment of Customs Duty, a preliminary inquiry was conducted which revealed that two Containers bearing Nos.SCZU-566376 and OOLU-5531671 loaded with various sort of articles had been imported and for their release Bill of Entry (GDI) Nos.12184 dated 15-4-2004 and 10765 dated 16-3-2004 had been filed at Lahore Dry Port; the articles imported (under Bill of Entry (GDI No.10765 dated 16-3-2004) had been got cleared from the Lahore Dry Port on payment of taxes, etc.,whereas the container in question, loaded with electronic goods/appliances against which custom duty and other charges Rs.28,59,253 were to be paid, had not been got released and intentionally its Bill of Entry had been kept pending and for clearance of the goods one Hafeez obtained the said bill of entry; meanwhile another container was arranged, its original number was erased and in its Place No.SCZU-566326-0 had been written with paint and for its clearance, a clearing agent by the name of Agha Nusrat Jang Durrani, on behalf of Messrs Al-Hamza Enterprises, had filed Shipping Bill No.0198 dated 10-3-2004, which was later on got cancelled; thereafter on 17-4-2004 the container in question (SCZU-566376-0) which was parked at Lahore Dry Port had been got released from Lahore Dry Port by loading it on Trawler No.TLB-589, which caused a huge loss to the. government exchequer as mentioned hereinabove. Resultantly the instant F.I.R. had been recorded.

3. The petitioner was arrested on 19-2-2007 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Special Judge Customs, Lahore who dismissed his application vide order dated 6-4-2007. Hence this petition.

4. I have heard the learned counsel for the parties and have perused the record.

5. It has been observed that shipping bill was arranged and got issued by the petitioner, thereafter Container No.55942-0 was got arranged by him and allegedly in A connivance with the staff its number was scratched and replaced with number of another Container viz. 566376-0. The learned trial Court on 19-2-2007 while refusing pre-arrest bail had passed the following order: "According to the investigation so far conducted, the petitioner seems to be the active participant in the clearing of imported articles in the name of M/s. Al-Mehmood and the clearing, articles were conducted by M/s. K.S.K Enterprises Customs Clearing Agency from whom Haseeb Ahmad Khan petitioner was working."

6. As such his involvement in the whole transaction is prima facie apparent. He is nominated in the first challan which was prepared on 29-5-2006. During investigation the prosecution had collected sufficient material qua the petitioner, which A incriminates him directly in the commission of offences, which had resulted into heavy loss to Government Exchequer. He is the person, who according to the prosecution had demanded Rs.22 lac for clearance of the container. Although the offences with which the petitioner has been charged do not attract the prohibitory clause of section 497(1), Cr.P.C. yet in view of the circumstances of the case and the ruthless manner in which the State exchequer has been ravaged, he could not claim bail as of right. It is now well-settled that the mere fact that the offence(s) does not attract the prohibitory clause of section 497(1), Cr.P.C. is not sufficiently by itself to release an accused person on bail. The concession of bail cannot be granted to a swindler or plunderer of the national exchequer for the simple reason that the offences do not attract the prohibitory clause. I find no merit in this petitions, which is hereby dismissed. H.B.T./H-27/L???????????????????????????????????????????????????????????????????????????????????? Bail refused.