2011 YLR 918 (PLP)

SHAHID HAMEED DAR, J.

Mujtaba-ul-Haq, the petitioner seeks bail after arrest as he stands arrested in case F.I.R. No.410 of 2009, dated 18-5-2009, under sections 420, 467, 468, 471, P.P.C., registered at Police Station Civil Lines, Rawalpindi on the complaint of Jawwad Malik who has alleged in the F.I.R. that his brother Sohail Asghar Malik fraudulently got the ancestral house 9-A, 6th Road, Satellite Town, Rawalpindi transferred in the name of his wife Surayya Sohail withthe connivance of Registration Staff, District Rawalpindi and for this purpose, he used the power of attorney of even those who had either already died or had got rescinded their power of attorney many years back; the matter was probed into by DDO(R), Rawalpindi Cantt. who vide his inquiry report, found Sohail Asghar Malik guilty of the charge.

2. The complainant made a supplementary statement under section 161, Cr.P.C. on 18-5-2009 before the Investigation Officer wherein he gave the detail of the executants having died much earlier to the date of attestation of Registration Deed No. 6842/ 1 and also furnished information as to the cancellation of the general power of attorneys by the remaining executants. According to his version, as contained in the supplementary statement, Mst. Sardar Begum the mother, Ghulam Shabbir the brother, and Nuzhat Kafaiyat the sister of Sohail Asghar Malik had died in years 1981 and 2002 respectively. His sisters Nusrat Malik, Riffat Malik, Nudrat Malik and Musarrat Malik had rescinded their power of attorney on 23-1-2001, still, Sohail Asghar Malik got attested the sale-deed on 22-12-2003 and for this purpose, he used his son Mujtaba-ul-Haq and one Raja Shabbir as the marginal witnesses of the sale-deed. Thus the name of the petitioner has figured in the supplementary statement of the complainant.

3. Mujtaba-ul-Haq Malik neither sought bail before arrest nor surrendered before the police like his co-accused so he was proceeded against under section 87 Cr.P.C. and was placed in Column No.2 of the challan, being an absconder, compiled by the Investigation Officer under section 512, Cr.P.C. He on the dismissal of his bail before arrest by the learned Sessions Judge, was finally arrested in this case on 5-10-2010.

4. Learned counsel for the petitioner submits that the petitioner is innocent and he has not committed any offence; he had no idea whatsoever as to why his father and co-accused Sohail Asghar Malik had written down his name in the sale-deed or asked him to appear before the attestation authorities for attestation of the sale-deed; the petitioner had just put his signatures on the sale-deed as a marginal witness deeming it an act of obedience and sincerity to his parents; the petitioner was just 19 years of age on -22-12-2003 i.e. the date of attestation of sale-deed and was a student of M.B.A who was not aware of the intentions and designs of his father and mother; sections 467, 468 and 471 P.P.C. are non-cognizable and section 420, P.P.C. is bailable, the petitioner merits release on bail as his case calls for further inquiry into his guilt. Relies upon "Saeed Ahmad v. The State" (1996 SCMR 1132) and "Dr. Zulkifal v. Pervaiz Akhtar Mughal and others" (2000 PCr.LJ 284).

5. On the other hand learned D.P.-G. assisted by the learned counsel for the complainant submits that the petitioner being a young educated person was fully conscious of the criminal design and plan of his parents so he voluntarily testified the sale-deed as a marginal witness, the beneficiary whereof was his mother and the vendor, his father: the petitioner being the son of the vendor and the vendee is the ultimate beneficiary of the above said fraudulent deed so he was swayed by the greed and lust for property; the petitioner possessed the knowledge of the death of the above-said executants aid the revocation of the power of attorney in favour of his father as all the executants were his close kith and kin; the petitioner by his conduct exhibited his malignancy and he is an accused in equal degree as regard his parents: the petitioner being the son of his co-accused had full knowledge about his implication in this case as an accused still he opted to abscond in this case along with his parents and a report under section 512, Cr.P.C. had been filed against him before the trial Court; the role of the petitioner is not only that of a facilitator but also he is a potent beneficiary of the instant episode; the offence with which the petitioner is charged, catches the prohibition of section 497, Cr.P.C. and his case does not fall in the purview of section 497(2), Cr.P.C.

6. I have heard learned counsel for the parties and perused the record.

7. The petitioner is the unfortunate son of his greedy parents who for the lust of the worldly gains did not even spare their son and he tamely readied himself to become a crucial character of the fraudulent act, designed, scripted, directed and played by his parents but, of course, with the active assistance of the petitioner. Mst. Sardar Begum who died in year 1981 .was the real maternal grand mother of the petitioner, Ghulam Shabbir executant who died in year 2002 was his real paternal uncle and Mst. Nuzhat Kafaiyat who died on 17-1-2002 was his real maternal aunt, rest of the executants were his real paternal aunts who all had cancelled their power of attorney on 23-1-2001. It cannot he agitated on behalf of the petitioner that he was not aware of the death of his afore-said relatives or that he was oblivious of the rescission of the power of attorney which had been attested in favour of his father in Year 1972. As submitted by his learned counsel, the petitioner was aged 19 and a student of M.B.A. on the day of the attestation of sale-deed in favour of his mother, so, being a young and an educated person, he was supposed to be equipped with all the sane/rational qualities, virtues and characteristics, destined to be possessed by a young educated person of his age. Even otherwise, the ignorance of law is no excuse. The petitioner after being nominated as an accused in this case opted to turn a fugitive from law along with his absconding parents. The learned counsel for the petitioner has not offered any explanation as to the long standing absconding of the petitioner. The law on the point of the abscondence is simple and plain that an absconder shall loose-some of his normal rights guaranteed under the substantive law as well as the procedural law. The argument of the learned counsel for the petitioner that investigation of the instant case had been hit by a bar, contained in section 155(2), Cr.P.C. is devoid of any merit as section 420, P.P.C. is cognizable and in presence of a cognizable offence, the other offences regardless of being cognizable or non-cognizable can be validly investigated by the police without fulfilment of requirement of the above-said provision of law. The petitioner has actively contributed towards the fraudulent act of his parents and played an important role in the commission of the afore-said offence through which immovable property worth crores of rupees has been transferred to his mother which speaks volumes about the culpability of the accused-petitioner in this case. The facts of the aforementioned case laws, I am afraid, do not assimilate the facts of the instant case hence, of no avail to the petitioner. The punishment provided for an offence under section 467, P.P.C. catches the prohibition of section 497, Cr.P.C. Prima facie there are no reasons to believe that the petitioner has not committed any non-bailable offence or that his case is open to further probe within the meaning of section 497(2), Cr.P.C:

8. For the foregoing reasons, I am not inclined to allow the instant petition which is dismissed accordingly. H.B.T./M-641/L Bail refused.