2010 PLP 63 (MLD)

ZUBDA TUL HUSSAIN, J.

The petitioner, who is accused of cheating through forgery and misrepresentation, has applied for pre-arrest bail in case F.I.R. No.272 of 2009 registered under sections 420, 468,'471, P.P.C. at Police Station Naseer Abad, District Lahore.

2. The allegation against the petitioner is that he, being the owner of one kanal of land comprising Khasra No.1996 situated in Mauza Kamahan, Tehsil Lahore Cantt., District Lahore, sold out the same to the Bankers Housing Society Limited through a registered sale-deed for which a consequential Mutation No.1231, dated 15-2-2006 was also sanctioned in favour of the Society. According to the complainant, the possession was also handed over to the Society, but later on, it transpired that the petitioner had managed the occupation of the Society on the land in Khasra No.1995 and 1998 by mispresenting that this was the land of Khasra No.1996 whereas later on it transpired that Khasra No.1996 situated on the southern side of Khasra No.1995 and 1998 was neither vacant nor otherwise available for sale, because it was totally occupied by the village Abadi and various people had constructed houses thereon. It was also stated that the land which according to the Revenue papers was in the ownership of the petitioner, was in fact under the constructed houses of "Abadi deh" and the petitioner had fraudulently sold out a piece of land to the Society, which was not available at the spot.

3. Mr. Shehryar Sheikh, learned counsel for the petitioner argued that the petitioner had not played any mischief on the Society, because he had actually delivered the land to the Society, which at the time of the sale was in his own possession as owner by virtue of the registered sale-deed. According to the learned counsel, the proprietary rights of the petitioner were duly incorporated in the revenue record, which no where indicated that the land in question was in possession and under the constructed houses of the villagers nor was it otherwise mentioned in the revenue record as "Abadi" or "Ghair Mumkin Abadi". The learned counsel explained that the petitioner had himself purchased this land only two years ago for a tangible consideration of Rs.4,00,000 which because of appreciation in its value, was sold to the Society for Rs.6,00,

000. It was maintained by the learned counsel that had the land been "Ghair Mumkin Abadi", there could be no reason for him to purchase the same on payment of Rs.4,00,000.

4. The learned counsel for the petitioner further contended that in the wake of the transparent entries in the Revenue Record and the purchase of land by the petitioner through registered sale-deed on the one hand was sufficient to exclude the element of mala fide on the part of the petitioner and on the other hand, it made out a case of further inquiry, because the contention of the Society was primarily relatable to proper demarcation of the land and ascertainments of the facts during the investigation as well as at the time of trial of the case before the learned trial Court.

5. The learned ADPP assisted by the learned counsel for the complainant argued that the petitioner had patently played the fraud, when by misrepresenting the facts, he showed a piece of land to the Society, which was never owned by him. According to the learned counsel for the complainant, no mala fide could be attributed to the Society for registration of the case against the petitioner and as such, the petitioner was not entitled to the concession of extraordinary relief in the form of pre-arrest bail.

6. As is evident from the facts of the case and the record, the proprietary rights of the petitioner were based' upon registered sale-deed executed in his favour by the real owners of the land, who were duly reflected as owners in the Revenue Record. The petitioner purchased this land on payment of heavy consideration at Rs.4,00,000 and pursuant thereto necessary changes in the revenue record were also made. There is no material at all on the record nor such material has been made available during the investigation that the sale-deed and the mutation of land in favour of the petitioner was false, fictitious or manoeuvred for the purpose of any fraudulent intention. Prima facie it was a purchase of the land by the petitioner for ostensible consideration of Rs.4,00,

000. The Revenue Record duly indicated the names of the owners of the land, who had executed the sale deed in favour of the petitioner. The registration office duly accepted the sale deed for registration and then the Revenue authorities also had undertaken the consequential measures for the sanction of mutation. The Revenue Record relied upon for the purpose of sale of land in favour of the Society had direct nexus with the entries of the Revenue Record on which the sale deed of the petitioner was based. As already stated, the matters relating to demarcation and exact location of the land would be determined during the investigation or at the time of the trial of the case. As per the revenue record, the title of the petitioner was not defective. It is, therefore, essentially a case of further inquiry in the context of the ownership and exact location of the land in question.

7. Where the bona fide and validity of the title of the vendor is prima facie borne out by the relevant record of registration as well as the Revenue Department, the question of location or demarcation of land has to be examined in the light of the relevant circumstances. In the present case, the factual of the purchase of the land by the petitioner for valuable consideration has necessitated proper inquiry into the question and location in the context of the ownership of the land.

8. There is no doubt that for the purpose of pre-arrest bail, the element of malice and ulterior motive has a special significance, but where bona fide of an accused and absence of any ulterior motive is not prima facie indicated by the record, the question of malice and ulterior motive of the complainant, has also to be put in juxta position of the claim, facts and circumstances relevant to the ownership rights of the accused as well. Hence, in the present case even without attributing the mala fide on the part of the complainant, the case of the petitioner can be considered for pre-arrest bail on the question of further inquiry, because if an accused petitioner is prima facie not liable for any unfair practice, it would not be just and proper that he may be handed over to Police custody and subjected to harassment and humiliation merely because the complainant has also suffered some embarrassment.

9. If, for the purpose of pre-arrest bail, the malice has to be found out in the complaint, the absence of mala fide and ulterior motive on the part of the accused is also an important factor towards his right of bail, because if he was a bona fide purchaser and sells out the same property without any mens area, he should not be blindly subjected to arrest and criminal liability only because he has not been able to allege or indicate mala fide against the complainant or the police. As to the allegation of malice the ratio of the cases of "Muhammad Ismail v. Ghaus Bakhsh and another" (1990 PCr.LJ 2013) and "Aftab Gul v. The State" (1989 PCr.LJ 1599) can also be relied upon.

10. I am accordingly of the view that it being a case of further inquiry to establish the guilt of the petitioner, he is entitled to the concession of pre-arrest bail. The bail petition is, therefore, allowed and the ad interim pre-arrest bail granted to the petitioner is confirmed provided he submits fresh bail bonds in the amount of Rs.50,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (Judi.) of this Court. N.H.Q./M-493/L Pre-arrest bail allowed.