1977 P Cr (PLP)

Muhammad Iqbal for Respondent No.

4. This is an application by Muhammad Ashraf Dar for the cancellation of the bail grunted to the respondents Muhammad Riaz, Taj Din, Haji Sardar Muhammad and Bashir Ahmad by the learned Additional Sessions Judge, Gujranwala vide his order dated 9-9-74.

2. The facts of the, case, briefly, are that there was a dispute (which still exists), between Muhammad Ashraf Dar petitioner and Muhammad Riaz and Taj Din respondents a Nos. 1 and 2 with regard to the possession of a bus stand in Gujranwala. The bus stand belonged to one Ch. Abdur Rauf and was taken on rent from him by Muhammad Riaz and Taj Din and Riaz Goods Forwarding Agency. About two years later on 22-11-72 Ch. Riaz and Taj Din entered into an agreement of partnership with Muhammad Ashraf petitioner by virtue of clause (4) whereof Muhammad Ashraf (petitioner in the present application), was to provide the entire capital for the running of the business and Riaz and Taj Din respondents were to receive a fixed share out of the profit. The concern was named Riaz Ashraf Goods For warding Agency. According to Ashraf petitioner this agreement was merely a device of handing over the premises of the .bus stand to Muhammad Ashraf, who alone was to invest the money and run the business. It appears that, whatever the intention of the parties to the agreement might have been, Mohammad Ashraf took over the effective possession of the adda, changed its name to "Ashraf Goods Forwarding Agency" and started running the business. According to him he did this in accordance with the explicit understanding between the parties at the time of the execution of the formal Agree ment Deed, which was mere a cover for the transfer of the Bus Stand to him. Riaz and Taj Din, however, do not appear to have liked this and there was a dispute, as a result Ashraf (petitioner) filed a civil suit against Riaz and Taj Din respondents praying for a permanent injunction against the respondents, restraining them from disturbing his possession. An interim stay order restraining Riaz and Taj Din respondents from disturbing his possession was granted. It appears that the four respondents decided to take possession of the Bus Stand by force and for this purpose took the law into their own bands. It is alleged that on the night between 11/12 of August, 1974, Riaz, Taj, Haji Sardar Muhammad and Haji Bashir respondents alongwith 20/25 other persons came to the Adda in a truck. Some of them were armed with guns. They beat up Mukhtar Chowkidar and a driver named Mohammad Akhtar as well as Muhammad 1qbal and Nazir Ahmad palleydar, with the butts of their guns. They then forcibly took away about 30-35 bales of cloth from Adda as well as the entire record as well as the cash from the office of the firm in another truck on which they had come, Mukhtar Ahmad Chowkidar lodged the report with the Policy about this incident and an F. I. R. was recorded against the respondents and their companions under section 148/379/448/149, P. P. C. The respondents applied for bail before arrest and were granted the same by the learned Additional Sessions Judge, Gujranwala vide his order dated 9-9-1974. The police subsequently added sections 395 & 397, P. P. C and obtained warrants of the respondents for these offences from the A. C., Gujranwala whereafter the respondents were arrested on 14-9-1974. After the passage of 24 hours the police applied for remand of the accused on 16-9-74, but the A. C. refused to give the remand and, instead, granted them bail on the next day i.e. on 17-9-1974. According to Muhammad Rafiq. Bajwah, the learned counsel for the respondents, the learned A. C. had grant ed them bail in view of the earlier order of the Additional Sessions Judge, Gujranwala granting bail before arrest even at present to the respondents. Their counsel, therefore, contended that they (i.e. the respondents) must be deemed to be on bail before arrest, granted by the learned Additional Sessions Judge, Gujranwala. It is for this reason that the present application is being treated as an application for cancellation of the bail before -arrest granted to the respon dents. It is contended on behalf of Muhammad Ashraf petitioner that since the respondents and their companions had come to the Bus Stand armed with deadly weapons and had taken away the cotton bales and record as well as the cash from the office of the Bus Stand, after beating the Chowkidar and other persons present there arid by putting them in imminent danger of death (sic) the offences, these facts clearly make out a case under sections 325 and 397, P. P. C. and the mere fact that the Police had not mentioned these sections in the F. I. R. does not mean that the above offences stand perma nently excluded. The petitioner's counsel submitted further that 30/35 cotton bales each of which costs about 7200/8000 were consigned, by different parties, to Muhammad Ashraf Goods Transport Company and are identi fiable not only by the marks put on them by the consigners but also by the, marks put on them by the employees of the consignee, i.e. the employees, of 'Ashraf Goods Transport Company'. The counsel argued further that the bails of cotton (except one) as well as the record and the cash money taken away by the respondents have yet to be recovered from them by the Police and that the grant of bail before arrest to them by the learned Additional Sessions Judge, Gujranwala has seriously affected the efficacy of the investi gation and has deprived the police of a fair chance of recovering the afore mentioned articles as well as investigating the case in proper course. The learned State counsel did not oppose the application for cancellation of bail but it was opposed by respondents through their own counsel. It was submitted on behalf of respondents that the case was merely an outcome of a dispute over the delivery of possession of a Bus Stand with regard to which proceedings under section 145, Cr. P. C. have also initiated in the Court of a. local Magistrate and the premises of the Bus Stand have been sealed under orders of the learned Magistrate. He stated further that case against the respondents is entirely false and that Haji Bashir who is named as arbitrator in the agreement deed between the parties has been named in the F. I. R. so as to render him ineffective as a witness for the respondents, in the civil suit filed by Muhammad Ashraf. The learned counsel for the respondents also contended that the allega tions in the F. I. R. are also falsified by the fact that there is no proof of any injury having been caused to any of the persons alleged to have been beaten by the respondents and their companions and that as a matter of fact they refused to submit themselves to medical examination. In reply to this the learned counsel for the petitioner submitted that after the registra tion of the case, influences of the local political persons were exerted and the police even removed Naqsha Mazroobis relating to the injured persons, from the record. The petitioner's counsel argued further that the fact that the injuries on some of the injured P. Ws. were actually noted down by the Police and Naqsha Mazroobis relating to them were also prepared, is bound to have been mentioned in the Police Ziminis. I check ed up the Police file. The first entry is made at 4-5 a. m. on 11-5-74 and relates to the recording of the F. I. R. Immediately thereafter, in para. No. 2 of the same Zimni it is clearly mentioned that Naqsha Mazroobis of Mohammad Iqbal driver and Nazir Ahmad were prepared and simple injuries were found on their person. It is also written they that were asked to get themselves medically examined but they replied they that would get themselves examined only after the arrival of their employer (i.e. Muhammad Ashraf) petitioner at the Bus Stand. I have heard the learned counsel for the parties and have considered the above-mentioned contentions of the parties and have perused the order of the learned Additional Sessions Judge and have also read the other documents produced by the parties, including the report of the police on which the proceedings under section 145, Cr. P. C. were initiated. Paragraph No. 3 of the said Police report is significant, as it is mentioned therein that about four months earlier Muhammad Ashraf (petitioner) had ousted Muhammad Riaz from the Adda and ran the business at the place under the name and style of "Asraf Goods Transport Company". It appears, therefore, that at the time of the occurrence the premises were in possession of Muhammad Ashraf petitioner. He then filed a civil suit for permanent injunction in the civil Court against the respondents as mentioned earlier. Considering the state of lawlessness prevalent in the country it is quite possible that the respondents felt charry of waiting for the completion of the lengthy civil proceedings and decided to take the law into their own hands and take forcible possession of the Adda and, in the process, they also took away the cotton bales, the record and case belonging to their opponents. However, the correctness or otherwise of the allegation made in the F. I. R. have yet to be verified by the police and it would be depriving the police of a fair chance of investigating the case property and of an opportunity of effecting the recoveries of the articles and things said to have been taken away by the respondents, forcibly. Moreover it appears from the material placed before me that the respondents are prima facie guilty of offences punishable with imprisonment for life or ten years' R. I. As such they are not entitled to bail in view of the provision of section 497 (1) of the Cr. P. C. and should not have been granted bail what to say of bail before arrest. In view of the above discussion: I accept the present application and cancel the bail before arrest granted to the respondents by the learned Addi tional Sessions Judge, by the order dated 9-9-74. The petition is accepted. Petition accepted.