2006 PLP 3017 (YLR)

MRS. YASMIN ABBASEY, J.

Allowed.

2. Deferred.

3. Granted subject to certain exceptions.

4. Facts of case are that on 18-7-2005 a Suit No.900 of 2005 was filed by Hasnain Tapal. During pendency of suit a contempt application was moved by Husnain Tapal that in spite of order of this Court on 18-7-2005 in his favour the respondents are adamant to take possession of the land in question by breaking the boundary wall and the gate affixed on the premises. That application was heard and by order dated 21-11-2005 it was observed that comments in the proceedings filed by Mukhtiarkar Aziz Junejo on behalf of D.O. were disputed by the then D.O. Lal Muhammad Kalhoro and had stated that he never instructed Mukhtiarkar Aziz Junejo to file such comments. In his further observation with reference to the factual aspects of case, the Director, Anti-Corruption (Provincial) was directed to lodge the F.I.R. against Mukhtiarkar, Aziz Junejo or against any other person and prosecute them in accordance with law. On the basis of this order dated 21-11-2005 F.I.R. was lodged on 3-12-2005. Learned counsel for applicant argued that neither in the order dated 21-11-2005 any role has been assigned against this applicant in preparing the forged documents in favour of original occupant Muhammad or Hasnain Tapal nor in the F.I.R. registered on 3-12-2005 he has been nominated as the culprit of making a forged and false entry in the revenue record in favour of Muhammad or the present beneficiary Hasnain Tapal. Learned counsel has also referred 161 statement of prosecution witnesses and submitted that during the investigation of the case none of the witness has named this applicant as the person, who made the false entry in the revenue record for the benefit of Hasnain Tapal because of any financial gain. Even in the challan submitted on 20-12-2005 no direct or indirect implication of this applicant has been brought on record to challan the applicant in the present case. It is further argued by learned counsel for applicant that even if for the sake of argument the case as pleaded by prosecution is taken as correct and it is assumed, at the least that there is any implication of the applicant in the commission of offence then also it is a case of documentary evidence. All the documents are in possession of prosecution, question of any tampering in them cannot be apprehended. To support his arguments, the learned counsel has referred the case of Muhammad Saeed Mehdi v. The State 2002 SCMR 282, wherein in a case registered under section 9(a)(iii)(iv) of the National Accountability Bureau Ordinance, 1999, it was observed that:-- "The object of a criminal trial is to make the accused face the trial and not to punish an under-trial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. It is also well recognized principle of law that bail cannot be withheld as punishment on accusation of non-bailable offences against an accused. It is also a salutary proposition of law that an accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay." Seed Ahmed v. The State 1996 SCMR 1132, wherein in a case against a retired cashier of police department who was not remitting 10% of the amount deducted from the rewards paid to the police personnel to District Police Welfare, Punjab, it was observed that:-- "As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner on furnishing one surety in the sum of Rs.50,000 to the satisfaction of the Deputy Registrar, Supreme Court, Lahore." Learned counsel for applicant has further referred a case of Muhammad and another v. The State 2006 PCr.LJ 1020, wherein co-accused of this matter namely Muhammad, the original beneficiary, was enlarged on bail, it was observed therein that: -- "Even otherwise, from the perusal of the material available on record, it appears that there is no allegation that the applicants were in charge or in custody of relevant record or had any authority or access to enable them to prepare any such illegal or bogus documents to benefit themselves. Besides, the civil suit in which the order for registration of F.I.R. was passed, is still pending and will be decided after the entire evidence is recorded, till such time the involvement of the applicants in the commission of offences of fraud and forgery cannot be presumed, as such the case of applicants calls for further inquiry." In reply to the arguments advancedby learned counsel for applicant, Mr. Sohail Jabbar. learned counsel of State has referred an enquiry report dated 26-7-2005 of DDO, wherein it has been reported by DDO Revenue Korangi Town, Karachi that Abdul Majeed Tapedar in collusion with Mukhtiarkar Landhi had made a false and forged entry in the revenue record and had issued transfer order in favour of Hasnain Tapal without verifying the previous entry and without going into the depth of the matter to the fact that the renewal of the so-called lease for 30 years in favour of Muhammad son of Ismail was renewed in open Katchehri said to had been held on 24-8-1992 and an entry in the record was made on 2-2-1992 i.e. about six months earlier. All this seems to have been managed by deleting the original pages and inserting the false entries. Though the contents of this enquiry report at this stage cannot be challenged as the matter is still under investigation and is pending before civil Court as well as before the criminal Court but even if it is taken that such report of DDO was on record on 26-7-2005 no reason has been assigned by the prosecution that why any case was not registered by the department on the basis of such report. The record reveals that the case has been registered against this applicant and the Mukhtiarkar and the other companions on the direction of this Court when such alleged act came in the knowledge of the Court. Learned State counsel has also referred 161, Cr.P.C. statement of this very applicant and has stated that he in extra-judicial confession has admitted to have made entry in the revenue record in favour of Hasnain Tapal on the direction of Mukhtiarkar, Aziz Junejo but that statement of accused is not a substantive evidence against him and is not admissible. Learned State counsel has referred the case of Imtiaz Ahmed and another v. The State PLD 1997 SC 545, wherein it is observed that:-- "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. for the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved." So far as the apprehension as expressed by learned State counsel that in case of grant of bail there is apprehension of his absconsion as the co-accused Mukhtiarkar after registration of case has absconded. Learned counsel for the State has referred the case of Ghulam Yasin v. The State 1968 SCMR 1308, wherein it is observed that;-- "There is no suggestion whatsoever that there is a danger of appellant's absconding or of the witnesses being tampered with if he is released on bail. Mere accusation of a non-bailable offence would not disentitle an accused from being bailed out if the law allows it. No doubt, it is true, that the law confers wide discretionary powers on Courts to grant or refuse bail in a non- bailable offence but such discretion must be exercised in a judicial and proper manner." After considering all the arguments advanced by the learned counsel for the parties and perusing the record placed on the file, I am of the opinion that though the false entry in the revenue record in the name of Hasnain Tapal as has been noticed by this Court is appearing but still the fact that whether there is an implication of this applicant in making such false entries on the direction of Mukhtiarkar, is there or not, need further enquiry. The civil litigation in this case is also pending, wherein nature of entries in the documents appearing in favour of Hasnain Tapal are to be scrutinized. Being a case of further enquiry and in view of the dictum referred above and also in the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 that: -- "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:

(a) Where there is likelihood of abscondence of the accused; (b) Where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) Where the accused is a previous convict. In view of foregoing reasons applicant is allowed to be enlarged on bail subject to his 'furnishing surety in the sum of Rs.5,00,000 (Rupees five lac only) with P.R. bond in the like amount to the satisfaction of learned trial' Court. H.B.T. /A-99/K Bail granted.