2006 PLP 559 (MLD)

M. BILAL KHAN, J.

Prof. Muhammad Laeeq son of Noor Muhammad, the petitioner, has sought pre-arrest bail in case F.I.R. No.104, dated 30-8-2005, registered at Police Station Jandanwala, District Bhakkar for offences under sections 120, 468 and 471 P.P.C.

2. The F.I.R. had been recorded at the instance of District and Sessions Judge, Bhakkar, who also happened to be the Returning Officer of the direct in the Local Bodies Elections held in August, 2005. The F.I.R. runs into great details and is spread over five foolscap papers. It is not necessary to give the entire details contained therein. However, briefly the allegation against the petitioner was that he was Presiding Officer of one of the ten polling stations of Union Council No.34, Jandanwala. Tehsil Kalurkot, District Bhakkar. It was alleged that the petitioner in connivance with Nasir Ali, Civil Judge/Returning Officer, had committed forgery, in that they had changed the result showing Rana Abdul Ghaffar, Advocate to have secured 158 votes whereas in actual fact he had bagged 358 votes.

3. After registration of the case, the petitioner filed Writ Petition No.15460 of 2005 in this Court, wherein the order passed by the learned District and Sessions Judge, dated 28-8-2005 on the basis of which the F.I.R. had been recorded was challenged and my learned brother Rustom Ali Malik, J. (as his lordship then was) vide order dated 7-9-2005 had directed that the petitioner shall not be arrested in the case till 13-9-2005. On 13-9-2005, the writ petition came up for hearing before me and I asked the Sub-Inspector, who was present in Court, to appear with original record on 20-9-2005, on which date the said writ petition was referred by me to a Full Bench of this Court, which was seized of connected writ petitions. The said writ petition had finally been withdrawn by the petitioner on 5-10-2005.

4. Thereafter, the petitioner applied for pre-arrest bail before the learned Additional Sessions Judge, Kalurkot, who allowed him ad interim pre-arrest bail on 5-10-2005, but the petitioner failed to appear before the said learned Additional Sessions Judge on 10-10-2005 and submitted an application seeking adjournment on the ground that he was indisposed. However, the learned Additional Sessions Judge while turning down his request had proceeded to dismiss his application for pre-arrest bail for non-prosecution. Hence, the instant petition.

5. Initially I was inclined to grant protective bail to the petitioner and refer him back to the learned Additional Sessions Judge because his application had not been decided on merits. However, I decided to hear the case myself as there was substance in the contention of his learned counsel that since the case had been registered at the instance of the District and Sessions Judge, Bhakkar, therefore, the learned Additional Sessions Judge may find it somewhat awkward to decide the petition.

6. The learned counsel in support of the petitioner's plea for pre-arrest bail has argued that the learned District and Sessions Judge had proceeded to pass the order dated 28-8-2005, on the basis of which the F.I.R. had been recorded against him, without even affording him an opportunity of presenting his point of view, that although the petitioner cannot claim a right to be heard before a case is ordered to be registered, yet, as it appears from the F.I.R. since all others were heard, therefore, it was unfair to have not heard the petitioner as well; that a plain look at the order dated 28-8-2005 would show that all the important political personalities of the district including Ministers and Legislators were interested in the matter and the petitioner is being made a scapegoat; that the petitioner had performed the difficult and arduous selection duties to the best of his ability and the allegations against him of tampering with the record and preparing a forged result is absolutely unfounded; that the petitioner is a highly qualified person and is presently serving as Principal, Government Degree College, Jandanwala, District Bhakkar and cannot even imagine of indulging in the odious act, which has been ascribed to him; that the same District Returning Officer, who has ordered registration of case had held a recount of votes cast in the disputed polling station and had declared the same candidate as returned, who was so declared by the petitioner, that if the petitioner is arrested, the respect and honour, which he commands in his capacity as Principal of the Degree College, would be shattered and he would be subjected to extreme harassment and irreparable humilitation by means of his unjustified arrest.

7. On the other hand, the grant of pre-arrest bail was strenuously opposed by Rana Abdul Ghaffar, Advocate, who was the loosing candidate for the seat of Nazim in Union Council 34, Jandanwala. The learned Additional Advocate-General assisted by the learned State counsel also joined cause with said Rana Abdul Ghaffar, Advocate and submitted that no specific mala fides have been pointed out, which could be attributed to the complainant as well as to the police for false implication of the petitioner. He also added that considerations for the grant of pre-arrest bail and post-arrest bail were entirely different and in the given facts and circumstances, the petitioner is not entitled to the concession of extraordinary relief of pre-arrest bail.

8. I have heard' the learned counsel for both the sides at considerable length and have also gone through the record brought by Nazar Hussain; S.-I.

9. It has been observed that the order dated 28-8-2005 of the learned District and Sessions Judge/District Returning Officer whereby apart from ordering registration of case against the petitioner, he had also prevented the Returning Officer of the said Union Council to announce the final consolidated result and had also ordered fresh poll in the polling station, of which the petitioner was the Presiding Officer, has since been set aside by the Full Bench of this Court vide its order dated 13-10-2005. I have been told by the Investigating Officer, present in Court, that ever since the grant of pre-arrest bail on 20-10-2005, the petitioner has been regularly joining investigation and that no recovery is to be effected from him as all the original documents including the disputed result are available with the District Returning Officer. I have also been told that on the basis of the District Returning Officer's order dated 28-8-2005, departmental proceedings have been commenced against the petitioner by the Education Department. On behalf of the petitioner, F.I.R. No.226, dated 7-10-1991, registered at Police Station Piplan, District Mianwali for offences under sections 406 and 420 P.P.C. and another F.I.R. No.53, dated 23-3-2004, registered at Police Station Kalurkot for offences under sections 420, 468, 471 P.P.C. had been produced, which had been registered against Rana Abdul Ghaffar, Advocate, to show that he was in the habit of committing fraud and forgery and levelling false accusations and that the instant F.I.R. was also false and fabricated. Another F.I.R. No.71, dated 4-10-1965, registered a Police Station Kalurkot, District Mianwali for offences under sections 363, 367, 377 P.P.C. was produced; wherein the said Rana Abdul Ghaffar, Advocate was the complainant and he had alleged that the accused persons named therein had kidnapped him and also subjected him to sodomy. However, since the said F.I.Rs have got no nexus with the present proceedings, therefore, I expressed my disinclination to give any weight to them in deciding this petition. Be that as it may, there is no denying the fact that the petitioner holds a very responsible position of Principal, Government Degree College, wherein hundreds of students are studying standing him behind the bars at this stage when he is no longer required for further investigation and no recovery has to be effected from him would serve no useful purpose. It would in fact reflect poorly on the institution, which he is heading and B indirectly the students of the College would also suffer embarrassment. It would, therefore, not be desirable to send him behind the bars at this point in time. His culpability would be determined by the trial Court during the course of trial.

10. Resultantly, this petition is allowed and the interim anticipatory bail already granted to the petitioner vide order dated 20-10-2005 is hereby confirmed. H.B.T. /M 25/L??????????????????????????????????????????????????????????????????????????????????? Bail confirmed.