P L D 2011 Supreme Court 509 (PLP)

ASIF SAEED KHAN KHOSA, J.

Through this petition Sameen Jan and Muhammad Irfan Khalid petitioners have sought leave to appeal against the order dated 16-11-2010 passed by the then honourable Chief Justice of the Lahore, High Court, Lahore in Criminal Miscellaneous Nos.11986-B of 2010 whereby post-arrest bail was refused to the petitioners in case F.I.R.No.167 registered at Police Station Anti-Corruption Establishment, Lahore on 20-10-2009 in respect of an offences under sections 420, 468 and 471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

2. After hearing the learned counsel for the parties and going through the relevant record appended with this petition we have observed that the allegations levelled against the petitioners pertain to 'their roles in attestation of a mutation on the basis of a Permanent Transfer Deed which was subsequently found to be a fake document; Sameen Jan petitioner was a Naib Tehsildar at the time of attestation of that mutation and Muhammad Irfan Khalid petitioner was a Girdawar at that time. We have repeatedly and searchingly required the learned Additional Prosecutor-General, Punjab appearing for the State to refer to any material available on the record prima facie disclosing any "criminal intent on the part of the petitioners in the transaction in issue but, apart from the respective roles played by the petitioners in attestation of the mutation is question, he has not been able to point out any material which could even tentatively hint at involvement of the petitioners in the forgery of the relevant Permanent Transfer Deed or could suggest that the petitioners were 'knowing or willing parties to the alleged conspiracy. It is not disputed that the petitioners were not the beneficiaries of the alleged forgery, etc. and so far no allegation has been levelled against them regarding accepting any bribe for the purpose of attestation of the relevant mutation. The learned Additional Prosecutor-General has also remained unable to show that the petitioners knew at the relevant time that the Permanent Transfer Deed in question was a fake document. The learned counsel for the petitioners has pointed out that it was at the instance of Sameen Jan petitioner himself that the relevant mutation was subsequently reversed after it has been brought to his notice that genuineness of the Permanent Transfer Deed in question was doubtful. It is admitted at all hands that the disputed mutation based upon the Permanent Transfer Deed in question still stands intact on the basis of an order passed in that regard by the Lahore High Court.

3. It is not disputed that initially both the petitioners had been admitted to pre-arrest bail by the learned trial Court but subsequently their bail was cancelled by the same Court without attributing any misuse or abuse of the concession of bail to them. The learned trial Court ought to have known that considerations for grant of bail and those for its cancellation are entirely different. Some of the offences allegedly committed by the petitioners are bailable and the remaining offences invoked in the F.I.R. do not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. The investigation of this case has already been finalized and, thus, physical custody of the petitioners is not required at this stage for the purpose of investigation. In. these circumstances continued custody of the petitioners in jail is not likely to serve any beneficial purpose at this juncture. It is trite that the concession of bail ought not to be withheld by way of premature punishment. Both the petitioners are public servants and there is little likelihood of their absconding in case of admission to bail.

4. For what has been discussed above the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is therefore, converted into an appeal and the same is allowed and, resultantly, Sameen Jan and Muhammad Irfan Khalid petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs.10,00,000 (Rupees one million only) each with two sureties each in the like amount to the satisfaction of the learned trial court. M.A.K./S-10/S Appeal allowed.