1994 PLP 1378 (MLD)

The petitioners being-:accused in a -case under 'section 419/420/467/468/471/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act; 1947 registered against them vide F.I.R. No. 16, dated 26-4-1993 with Police Station ACE, Multan Region, have -moved this application under section 497/498, Cr.P.C. for the grant of bail after refusal of the same by the learned Special Judge Anti-Corruption. Dera Ghazi Khan, Camp at Muzaffargarh vide order, dated 7-2-1994

2. The relevant facts for the purpose of the disposal of

3. The learned-counsel for the petitioners urged bail 'on the following, grounds:-- (i) That the case has been registered against the petitioners with an. unexplained delay of 24 years. (ii) That pending an application under section 12(2), CP G. for setting aside the decree in question, the criminal, prosecution against the petitioners on the basis of-alleged forged power of attorney is abuse of the process of law. (iii) That the, decree remained unexecuted and nothing was, gained by the petitioners causing any actual loss to, the owners of the land. (iv) That a lengthy probe of revenue record consuming much time shall be required and there being no. chance of early disposal of the case against the petitioner, they deserve a o cession o bail. (v) That guilt or innocence of the petitioners depending upon the question whether decree was obtained through fraud is yet to be decided by the trial Court.

4. The learned counsel argued that the negative report of finger print expert being not a conclusive proof of the allegation against the petitioner, the case against them requires further enquiry and they pending trial are entitled to the concession of bail by virtue of subsection (2) of section 497, Cr.P.C.

5. The learned counsel appearing on behalf of the complainant and the State opposed the bail on the ground that the petitioners committing. fraud upon the Court made an attempt to deprive the poor family from valuable property, do not deserve the concession of bail.

6. Having considered the arguments advanced by the learned counsel for the parties and perused the relevant record. I feel persuaded to agree with the learned counsel for the petitioners that the case being of special feature involving a lengthy probe into record requires further inquiry. The investigation of the case is being conducted by the S.P. of the Anti-Corruption Establishment, Multan. As per finger print expert report the power of attorney was found, a forged document and the investigation against the petitioners is a complete but challan shall be submitted after conducting the investigation against Revenue Officials involved in the case who are not yet traceable.

8. A general power of attorney creating a legal right in the property with the power of its disposal undoubtedly is a valuable security, but the real question for determination shall be as to whether this valuable security was a forged document constituting an offence under section 467, P.P.C. and the evidence of forgery against the petitioners is available to connect them with, commission of offence. If ultimately the power of attorney in question is not found a forged document as alleged, the decree obtained from Civil Court even if obtained without the consent of original owners, the criminal liability of the petitioners shall be doubtful.

9. The alleged forgery was committed in 1970 and decree was obtained in 1971. The criminal prosecution of the petitioners for the offence, they being charged would be a futile exercise. After dismissal of the application under section 12(2), C.P.C. moved by the complainant party for setting aside the decree in question some where- in 1989 a fresh application under the said provisions of law was moved in December, 1989 which is still pending adjudication. The delay in lodging the report prior to the filing of first application under section 12(2), C.P.C. before the Civil Court for want of knowledge is understandable but no explanation has been offered for not initiating the criminal prosecution against the petitioners immediately after acquiring the knowledge about the fraud. The question whether the alleged act of forgery was the sole responsibility of the petitioners or they themselves prayed in the hands of a third party including some one from the original owners to exclude others from share of property needs determination. Mere fact that power of attorney was executed in favour of Ghulam Rasool and consequently decree was passed in favour of petitioners in absence of any other evidence against them whether shall be sufficient to hold them guilty, is a matter of evidence. Admittedly the decree in question remained unexecuted causing no actual loss to the land owners, the charges against the petitioners except under section 467, P.P.C. being punishable with sentence less than ten years, do not fall within the prohibitory clause. The application of section 467, P.P.C. shall depend upon the proof that petitioners were not only beneficiary of the documents but they allegedly committing forgery prepared the fake documents. The property involved of large value, itself is no ground to refuse bail. The forged documents are already in the custody of Investigating Officer, there is no possibility of tempering with evidence by the petitioners. The pendency of investigation vis-a-vis revenue official who are not traceable is also no ground to withhold the bail of the petitioners.

10. Without prejudice to the merits of the case, there being sufficient ground for further inquiry into the guilt of the petitioners, they are directed to be released on bail subject to their furnishing bail .bonds in the sum of Rs.2,00,000 each with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Muzaffargarh. N.H.Q./R-131/L Bail allowed