1994 P Cr (PLP)

Nemo for the State. Date of hearing: 4th April, 1994 The facts of the case are stated in some details in the order, dated 21-10-1992 passed in Criminal Miscellaneous No. 1284/CB of 1992 (Multan), whereby the bail granted to the petitioners by the learned Additional Sessions Judge, vide his order, dated 27-9-1992, was cancelled. They were taken into custody.

2. Later it appears the petitioners moved the Additional Sessions Judge, Vehari, for the grant of bail and he, vide his order, dated 5-8-1993, granted bail to Muhammad Hussain, Zulfiqar Ali and Muhammad Amir petitioners and vide his subsequent order, dated 26-8-1993, granted bail to remaining five petitioners. Thereupon Muhammad Afzal complainant made an application to that Court for cancellation of bail of his opponents on the ground that the order of this Court cancelling their bail earlier granted by the Additional Sessions Judge had been suppressed. On his application, the learned Additional Sessions Judge, vide order, dated 13-11-1993, recalled both the aforesaid orders passed by him granting bail to the petitioners and they were again sent to the judicial lock-up after having been taken into custody. Aggrieved by this order they have again approached this Court for the grant of bail. Since the matter pertains to Multan Bench it has been entrusted to this Court by the Honourable Chief Justice for disposal.

3. I have heard the learned counsel representing the parties at some length. The main contention of the learned counsel for the petitioner, which has been raised for the first time before this Court, is that the petitioners and their relations had been in possession of six lots of State land in the village under the Temporary Cultivation Scheme for a period of five years w.e.f. 1974 and their lease continued to be extended from time to time. According to him, on 5-10-1991 they were conferred proprietary rights of all the six lots and they deposited the first instalment of Rs. 4,

990. To their surprise, Collector Vehari, vide order, dated 14-11-1992, cancelled the allotment of the six lots and resumed the land thereof on the ground that these lots had been included in the Islamabad Oustees Scheme long ago and the same could not be allotted to the petitioners and their relations. He allotted all the six lots to Muhammad Afzal complainant, his son Muhammad Akmal, his Bhawaja Azra Naveed, his sister Mst. Khalida and Mst. Yasmeen and maternal-nephew Ishtiaq as Islamabad Oustees, he adds. He contends that some of the petitioners and their relations successfully challenged the allotment of lots allotted to Mst. Yasmeen and Ishtiaq aforesaid in Writ Petitions Nos.771 and 775 of 1989 before Multan Bench of the High Court and the appeal of their opponents failed before the Supreme Court as it appears from its order, dated 30-3-1993. According to him, it was held by the High Court and the Supreme Court that since the approval of the Islamabad Oustees Scheme was accorded by the Board of Revenue on 4-1-1993 this order would not have retrospective effect to adversely affect the allotment of lots of the State land to some of the petitioners, who had even been conferred proprietary rights in the year 1981, and had also deposited certain instalments of compensation amount. According to the learned counsel, the other petitioners, whose lots had been allotted to Muhammad Afzal complainant, his son Muhammad Akmal, Bhawaja Azra Naveed and sister Mst. Khalida, instead of challenging the cancellation of their allotment through a writ petition, took recourse to the civil suits, the plaint whereof continued to be rejected under Order 7, Rule 11, C.P.C. and one suit is still pending. With reference to the order, dated 27-8-1989, passed by the Supreme Court against the order, dated 19-12-1988 passed by this Bench (while working at Multan) in Civil Revisions Nos.731 and 732 of 1985, he submits that though the order of the trial Court dismissing the applications of temporary injunction of the certain petitioners arising out of their suits were maintained right up to the Supreme Court, but the observations made by the High Court touching the merits of the case were directed not to influence the course of the trial of the pending suit of the petitioners. In his opinion, the law laid down by the High Court and the Supreme Court in respect of the lots of Mst. Yasmeen and Ishtiaq would inevitably decide the fate of the petitioners' suit in their favour as their allotments were also prior in time to the order of the Revenue Board confirming the Islamabad Oustees Scheme. It is urged that the petitioners and their relations being lawful allottees of all the six lots continue to be still in possession thereof, and since the possession thereof was never taken away from them, they did not commit any offence for which they are being erroneously prosecuted and have been behind the bars for a considerable period of time. Finally, it is urged that none of the offence, of which they stand charged, fall within the prohibitory clause of law of bail.

5. On the other hand, it has been argued by the learned counsel for the State as also by the complainant that the judgments of the Supreme Court in Yasmeen's case and Ishtiaq's case referred to by the petitioners' counsel have no nexus with the lots of Muhammad Afzal complainant his son Muhammad Akmal, his Bhawaja Azra Naveed and his sister Mst. Khalida because the petitioners continued to challenge the order of Collector, Commissioner and Board of Revenue by bringing separate suits at each stage and every time they have remained unsuccessful right up to the highest judicial forum. According to the learned counsel, the findings adversely recorded to the petitioner by the superior Courts in the suits brought by them have specific bearing on the pendency of the suit pertaining to the disputed lots which stand barred by the principle of res judicata. He contends that pursuant to the orders passed by the Revenue Authorities in favour of Muhammad Afzal complainant and his relations in respect of the disputed property, they took possession of the disputed land and in order to finish the controversy even paid compensation worth thousands of rupees to the petitioners but they, displaying highhandedness and with the support of influential persons of the area, not only took forcibly possession of the land and its standing crop but also the household belongings of the complainant and his relations, including the tractor, and in these circumstances when they are defying the orders of the superior Courts, they are not entitled to the grant of bail.

6. The case-giving rise to these proceedings was registered against the petitioners on 30-7-1992 at Police Station Tiba Sultanpur under section 382, 440, 379, 447, 452/148 and 149, P.P.C. on the statement of Muhammad Afzal complainant, alleging his unlawful dispossession and misappropriation of his belongings by the petitioners. For dispossession from the disputed land and houses and misappropriation of his belongings after having been stolen, the petitioners were arrested and bailed out many a time by the lower Courts and eventually the bail granted to them by the learned Additional Sessions Judge was cancelled by this Court, vide order, dated 21-10-1992, whereafter they were regranted bail by the learned Additional Sessions Judge, Vehari, but he soon after recalled his order when the order of this Court was brought to his notice. In any case, the petitioners have continuously been behind the bars since 21-10-1992. The matter in two similar cases has been taken to the High Court and then to the Supreme Court by way of writ petitions and findings of those Courts are apparently against the complainant and his relations if the same are made applicable to the pending suit of the petitioners. However, since the petitioners have been challenging the various orders of the Revenue Authorities in different civil suits brought by them and they have often been unsuccessful, also right up to the High Court and the Supreme Court those findings have a special bearing on the pending suit of the petitioners in the light of principle of res judicata. In any case, to my mind, it is for the Supreme Court how to reconcile its findings given in Yasmeen's case and Ishtiaq's case vis-a-vis those in the various suits of the petitioners challenging different orders of the Revenue Authorities, one of which is a still pending. These orders will no doubt, also present difficulty to the trial Court and the appellate Court and the controversy might ultimately be settled by the Honourable Court at the apex. These complicated circumstances to my mind, make out a case of further enquiry and the petitioners, who have been behind the bars for the considerable period of time, are granted bail if they furnish bail bonds in the sum of Rs. 30,000 each with one surety each in the like amount to the satisfaction of toe trial Court which is directed to decide the case within a period of three months:

7. As per request of the learned counsel representing the parties, Mr. Nasrullah Niazi, Civil Judge, in whose Court the petitioners' suit challenging the final order of the Revenue Authorities is pending, is directed to decide it expeditiously and in any case within three months from the date of this order, under intimation to the Deputy Registrar (Judl.) of this Court. If appeal arises out of his decision, the same shall also be decided quickly by the appellate Court.

8. As regards the omission on the part of Mr. Mushtaq Ahmad Tarar, Advocate, in the bail application moved by him before the learned Additional Sessions Judge, Vehari, he has regretted his lapse orally as well as in writing and has undertaken to be careful in future. No action is, therefore, taken against him in this regard and the notice issued to him is discharged. N.H.Q./M-1799/L Bail granted.