1989 P Cr (PLP)

6 It is submitted by Mr. Muhammad Hayat Junejo, learned counsel for the applicant that all the offences with which the applicant is charged are ether bailable or are punishable with less than 10 years' imprisonment and as such do not fall within the mischief of prohibition contained in section 497, Cr.P.C., except section 467, P.P.C. It is submitted that in cases not falling within the prohibitory clause of section 497, Cr.P.C. it is settled law that the grant of bail is a rule and rejection is an exception. It is further submitted that section 467, P.P.C. would not be applicable in the case of present applicant and at the most section 466, P.P.C. would be applicable, the punishment of which is also less than 10 years' imprisonment.

7. To appreciate the arguments of Mr. Muhammad Hayat Junejo learned counsel for the applicant, it will be necessary to reproduce the said section

467. P.P.C. which reads as under:- Section 467.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or an document to be an ac quittance or receipt acknowledging the payment purporting money, or an ac quittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Valuable security has been defined in section 30, P.P.C. which reads as under: Section 30.-- The words `valuable security' denote a document which is, or purports to be, a document whereby any legal right is created. extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right."

8. It is submitted by Mr. Muhammad Hayat Junejo learned counsel for the applicant, that the applicant is alleged to have forged or to have been party to forgery of power of attorney alleged to have been executed by said Umer Qureshi in favour of the applicant authorising him to sell or alienate the aforesaid plot in accordance with the terms of the said power of attorney. It is submitted that the power of attorney is not a valuable security and furthermore section 466, P.P.C. specifically deals with punishment for fogery of power of attorney for which punishment is also six years. In support of his contention he has relied upon the case of Abdul Malek v. Mozammel Haque and others reported in 1970 D L C

794. In that reported case a learned Single Judge of the erstwhile High Court of East Pakistan has held "A Vakalatnama" is a document under which a person empowers his lawyer to do certain things on his behalf. Such a document does not on the face of it purport to create, extend, transfer restrict or extinguish a right and as such, it cannot be deemed to be a `valuable security' within the meaning of section 30 of the Pakistan Penal Code'. It is submitted by Mr. Muhammad Hayat Junejo that Vakalatnama is also a power of attorney and it is not a `valuable security'.

9. Mr. Azizullah K. Shaikh, learned counsel for the complainant has urged that under the power of attorney the applicant has been empowered to sell, transfer, gift, lease or alienate the plot in question by executing gift, lease or sale- deed and present the same for registration which impliedly authorised him also to receive the sale price or the lease money and thus this document confers upon the applicant certain rights which are recognised by law and as such it would be a document conferring legal rights upon the applicant and would, therefore, be a valuable security within the meaning of section 30, P.P.C.

10. The term `legal rights' was considered in the case of Daniel Hailey Walcott and another v. State A I R 1968 Mad.

349. The question involved in that case was `whether a passport was a `valuable security' within the meaning of section 30, P.P.C. While discussing the meaning of term `legal rights', it was observed as under:- "The expression `legal right' used in the definition of valuable security is not defined and is a difficult concept. From the statements of eminent, jurists about the concept of `legal right' the following principles can be' deduced broadly to understand that a `legal right' is; (1) `legal right' in its strict sense is one which is an assertable claim; enforceable before; Courts and administrative agencies; (2) In its wider sense, a legal right' has to be understood as any advantage or benefit conferred upon a person by a rule of law; (3) There are legal rights, which are not enforceable though recognized by the law; (4) There are rights recognised by the International Court, granted by international law; but not enforceable; and (5) A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the Courts. The test of enforceability, though it may be a normal one, is not the only test for determining a legal right. A legal right may be one recognised by rule of law, either by Municipal law or international law, without the, capacity of being enforced. A legal right may be asserted even before administrative agencies. It includes the liberty of freedom from penalty In short it can be said that a legal right is one which is either enforceable or recognised." It was further observed that "the possession of a valid passport by a foreigner creates a right recognised and enforceable in any event a right recognised by rule of law". Similarly a power of attorney is recognised by law and creates rights to a person to do certain acts authorised under, the power of attorney. He can enforce the right of getting the sale-deed registered before the Registration Authorities. Therefore, tentatively I am of the opinion that the power of attorney can be considered as a `valuable security' within the meaning of section 30, P.P.C. As such the forgery, if any, of such document would be an offence punishable under section 467, P.P.C. which falls within the prohibitory clause.

11. In fact two power of attorneys are purported to have been executed by Mr. Umer Qureshi to favour of the present applicant. One power of attorney is dated 14-5-1987 which is unregistered and the other is dated 19-1-1988 which is registered power of attorney.

12. The prosecution case is that the applicant alongwith co-accused had forged the sale-deed which purported to bear the signature of Umer Qureshi with respect to the disputed plot and when it was presented before the P.E.C.H. Society's Authorities, they did not accept the unregistered power of attorney, and therefore, both the co-accused are alleged to have got another power of attorney, purporting to be signed by Umer Qureshi fraudulently registered. 12-A. The passports produced by the prosecution of Umer Qureshi which have been discussed in the order passed in the bail application of the co -accused clearly show that Mr. Umer Qureshi did not visit Pakistan during the relevant period when the powers of attorney are alleged to have been executed by him. Even the applicant in the affidavit before the learned Sessions Judge, in support of the bail application, had stated that the co-accused induced him to invest money and had defrauded him of Rs.13,50,000 and that he was made to sign some power of attorney and other documents and that he was introduced with one person as Umer Qureshi. He further states that on enquiry he came to know that Mr. Umer Qureshi was a different person from the person who had been introduced to the applicant as owner of the plot and was residing in U.K.

13. It is submitted by Mr. Muhammad Hayat Junejo learned counsel for the applicant that Mr. Syed Ishtiaq Ali' Advocate, who represented the applicant, also represented the co-accused in the civil suit arid he had drafted the affidavit which the applicant signed without understanding or reading it due to his faith in the Advocate. Mr. Azizullah K. Shaikh has pointed that even in para. 5 of the bail application moved by the applicant before the learned Sessions Judge, which was drafted by another Advocate, similar averments have been made. Rather it is asserted that Umer Qureshi had sold the plot to co accused and received Rs.26,00.000 (Rupees twenty-six lacs?

14. Keeping in view all these facts, prima facie there appears to be reasonable ground to believe that the applicant has either forged or abetted the forgery of the said documents.

15. Admittedly on the basis of these alleged forged powers of attorney the applicant had inserted advertisements in newspapers advertising the sale of the plot in question and inviting objections. One of the advertisements in Daily Dawn, dated 7th April, 1988 shows that the clients of Mr. S. Ishtiaq Ali, Advocate had purchased the plot in question from Umer Qureshi through his attorney Jawaid Akhtar. It may also be pointed that admittedly Mr. Ishtiaq Ali was also the Advocate of the present applicant Jawaid Akhtar.

16. Furthermore the application has been moved by the applicant for bail before arrest. The principles on which bail before arrest can be granted have been enunciated by their Lordships of the Supreme Court in the case of Murad Khan v. Fazal-e-Subhan and another P L D 1983 SC

82. Their Lordships have observed that "the foregoing resume of the case-law since 1949 and the recent trend of authorities would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre-arrest bail".

17. Mr. Muhammad Hayat Junejo has, however, relied upon the case of Jamaluddin v. The State 1985 S C M R 1949. In that case their Lordships observed that `grant or refusal of bail depended on the facts of each case and no hard and fast rules could be laid down therein. Bail was granted in that case, as the accused had alleged before the trial Court that his womenfolk were illegally taken to police station and that the police was bent upon insulting humiliating and harassing the accused as was done by them in collusion with the complainant party in the past.

18. Apparently the facts of the case of Jamaluddin appear to be distinguishable from the instant case, as in the instant case, even, in this Court the applicant has not alleged any ulterior motive -on the part of the police. Only in para. 12 if is alleged `that the facts and circumstances of this case clearly show that the parties are involved in civil litigations and that the applicant is being dragged in a criminal Court for ulterior motives, and the said proceedings arc mala fide, and amount to an abuse of the process of the Court'. Mala fides has been alleged against the complainant, but there is no such allegation against the police.

19. Mr. Muhammad Hayat Junejo has also relied upon the case of Raza Muhammad Sial v. The State 1988 S C M R 1223 wherein their Lordships had granted pre-arrest bail where the petitioner had asserted that he was falsely implicated due to departmental intrigue and conspiracy. Their Lordships held that `no burden was cast on accused at bail stage in such proceedings to prove the allegations.

20. No doubt the burden is not upon the applicant to prove the allegations of' mala fides, but as held by their Lordships in the aforesaid case of Murad Khan it, is necessary for the Court to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other, ulterior motives or reasons. There is no such circumstance present in this case. The mere fact that civil litigation is pending concerning the plot in respect of which the documents are alleged to have been forged, cannot prima facie be considered to furnish ulterior motive to the complainant or police.

21. Under the circumstances, in my opinion, no case for pre-arrest bail is made out either on merits of the case or on the ground that the applicant would tie harassed or humiliated by the police due to ulterior motive. I accordingly reject the bail application. M.A.K./J-57/K Bail refused.