2006 PLP 980 (MLD)

MRS. YASMIN ABBASEY, J.

On 31-10-2005 a complaint was lodged by complainant that applicant/accused Abdul Basit by committing fraud with him had got executed sale-deed on 18-7-2005 and had obtained his signatures thereon that if he wants to gift the disputed property in favour of his son it will cost of Rs.4,800 as registration charges therefore, to make it economical first complainant should execute general power of attorney in favour of applicant and this applicant will execute sub-general power of attorney in favour of complainant's son. According to complainant he trusted to the applicant and went with him to the office of Sub-Registrar and signed it before him. According to complainant fraud played by applicant came in his knowledge on 25th of October, 2005 when he went to office of Deputy Registrar for obtaining General Power of Attorney got executed by Abdul Basit in his favour and was informed that instead of General Power of Attorney, applicant got his signature on sale-deed. Case of complainant is that he had never consented nor had never entered into sale-deed with applicant/accused and the signatures appearing thereon have been obtained by fraud. Learned counsel for applicant while arguing the case for bail before arrest has referred sale-deed executed in between him and the complainant on 18th of July, 2005 and had referred photocopies of pay order and statement of bank as a payment of sale consideration but the contents of pay order and statement of Bank do not reflect that they relate to the same transaction as the pay order bears dated 24-6-2005 and 29th June, 2005 i.e. before the execution of alleged sale-deed whereas the statement referred by learned counsel for applicant in respect of withdrawal of Rs.500,000 on 11-8-2005 said to be paid as sale consideration is after the execution of sale-deed therefore this payment of Rs.500,000 and pay orders cannot be matched with the sale-deed as contents of sale-deed placed on record show that on 18-7-2005 the whole payment was made. In support of his arguments the learned counsel has referred 1993 PCr.LJ page 446, 2000 PCr.LJ page 1230 and 1985 PCr.LJ page

85. In the citation referred it is observed that matter on the face it was purely of civil nature, therefore, civil liability could not be enforced by criminal prosecution. Whereas in the present case allegation of fraud and cheating under section 420, P.P.C. has been alleged by complainant and 2004 PCr.LJ 1000 referred by learned counsel for applicant is very much material wherein it is observed that:-- "Extraordinary jurisdiction of anticipatory bail was purely concession of law which could be granted only in appropriate cases, but the balance had to be kept and each case had to be dealt with on its own merits." However, PLD 1995 Supreme Court page 34 it is observed that grant of bail is a right, refusal an exception. But such observations were made in case under sections 496 and 497, Cr.P.C. whereas the case in hand is under section 498 and is to be dealt on different footing. It is pointed out by learned State Counsel that in spite of submission of challan the applicant is avoiding to appear in Court and one after the other is moving applications for pre-arrest bail with no sufficient grounds and his non-appearance in the matter is a cause of delaying trial of case. In the last learned counsel for applicant has came up with new plea that complainant has no grievance in the matter and he is still in good terms with applicant but it is his son at whose instigation this complaint has been filed. Hence in the circumstances proper course for him was to join investigation and brought the correct picture on record, for arriving at a proper conclusion. I find support to the conclusion drawn by me discussed above from PLD 1994 SC 133 wherein it is observed that:-- "As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that it is a fit case for grant of such relief within the limits of law as stated above." In the circumstances discussed above the pre-arrest bail is rejected. H.B.T./A-59/K Bail rejected.