2010 P Cr (PLP)

M.A. ZAFAR, J.

The petitioner, Muhammad Ibrahim seeks post-arrest bail in case F.I.R. No.24 of 2005 dated 28-3-2005 for offence under sections 420/468/471, P.P.C. read with section 5/2/47 P.C.A., registered with Police Station Anti-Corruption Establishment, Lahore at the instance of Shaukat Ali complainant. This is 2nd bail application, earlier Criminal Miscellaneous. No.4594/B of 2006 was dismissed vide order dated 17-1-2007.

2. According to the allegations the father of complainant Jagmal son of Bhambo had been allotted land measuring 93 Kanals, 14 Marlas in village Ladhar, Lahore Cantt., District Lahore, his father died on 12-8-1977, whereupon an inheritance mutation was sanctioned in the name of complainant and his father's other legal heirs; that on account of consolidation proceedings carried out in the year, 1992, the inherited property measuring 93 Kanals, 14 Marlas and the property purchased by the complainant and other co-sharers later on totalling 122 Kanals and 18 Marlas came to their share, which was in their possession that out of the total holding i.e. 122 Kanals, 18 Marlas, a deal was struck with DHA Lahore for the sale of 97 Kanals; the said sale took effect and regular sale-deed by means of Document No.4078, Bahi No.1, Volume No.325, was executed on 22-5-2004; that thereafter one Akbar Ali son of Fajar Khan, a Patwari in the Irrigation Department, manoeuvred an application by one Ibrahim son of Jagmal, resident of village Rampur, Tehsil Daska District Sialkot to the. EDO(R) that a piece of land measuring 35 Kanals, 11 Marlas of his father Jagmal son of Eadroo had wrongly been granted to Jagmal son of Bhambo and prayed that the same be got restored to him; the said application was marked by the EDO(R) to the Consolidation Officer, Muhammad Anwar, Peshi Qanungo and Ch. Mumtaz Ahmed, DDOC, Lahore in connivance with Akbar Ali, Irrigation Patwari and Muhammad Ibrahim son of Jagmal, the applicant, got new mutation entered in his name and got the record corrected. The complainant also alleged that he was kept completely in the dark about any application thus moved by Muhammad Ibrahim and the resultant order dated 6-5-2004 passed thereon for correction of record (Sihat-e-Inteql) and through this exercise he had been deprived of his valuable land measuring 35 Kanals, 11 Marlas. Resultantly, the instant F.I.R. had been recorded.

3. Learned counsel for the petitioner submits that the petitioner was arrested on 5-7-2005 and since then he is in custody and the delay in conclusion of the trial cannot be attributed to him. He further submits that co-accused M. Akbar Ali whose bail was rejected by this Court vide order dated 16-1-2006 passed in Criminal Miscellaneous. No.9038/B of 2005 was allowed bail by the Honourable Supreme Court of Pakistan vide order dated 2-3-2006 passed in Criminal Petition No.72/L of 2006 and following the rule of consistency, the petitioner is also entitled to be released on bail.

4. On the other hand learned counsel for the complainant submits that the complainant can produce his entire evidence before the learned trial Court within a period of one month, if so directed. He further submits that the petitioner being beneficiary of the entire fraud, is the main accused.

5. After hearing learned counsel for the parties and perusing the record, I have noticed that the case of the present petitioner is quite distinguishable from the case of Akbar Ali co-accused, since released on bail by the Honourable Supreme Court of Pakistan vide orders dated 2-3-2006. Challan in this case was' submitted on 17-2-2006 and thereafter the matter is being adjourned for one reason or the other particularly due to non-appearance of the co-accused and the prosecution had been seeking adjournments for submission of complete challan. However, the complainant challenged the letter dated 9-3-2007 dropping the case by Director General Anti-Corruption Establishment Punjab by filing a Writ Petition No.2866 of 2007 in this Court. The operative part of the afore-said letter is as under:

"The case was reinvestigated and examined in this Directorate. The W/Director General ACE Punjab has been pleased to drop the case. The, authority further approved that final report prepared by DD(G)HQ be forwarded to 'SMBR for necessary action including making necessary correction in the record and initiating disciplinary action against DDOC on the ground of passing order of mutation without lawful authority."

6. In the aforesaid writ petition, this Court vide order dated 30-3-2007 directed the learned trial Court not to take any further step in pursuance of the Additional Director's letter No.9-3-2007 or on the application of respondent No.4 dated 13-3-2007. Needless to mention here that Mukhtar Ahmed Chaudhary co-accused of the petitioner had moved an application before the learned Special Judge Anti-Corruption Establishment, Lahore to expedite the hearing of the case and pass orders on the cancellation report submitted before him. After the order passed by this Court on 30-3-2007 no proceeding took place during the trial and B since then the learned trial Court had been adjourning the case awaiting the decision to be passed by this Court in writ petition in which the injunctive order was issued. The petitioner was arrested on 5-7-2005 and since then he is in custody. The offence with which he has been charged does not fall within the prohibitory clause and the same is maximum punishable up till seven years. Petitioner is languishing in jail for the last three years and 10 months and he is hot responsible for causing delay in the conclusion of the trial. Right from 50th March, 2007 no progress in the trial took place on account of injunctive order obtained by the complainant. Early conclusion of the trial is the right of every accused and an accused cannot be put at the mercy of the prosecution or the complainant. The prosecution has yet to take start by producing its evidence and the concept of pre-trial release of the accused was developed on three presumptions: firstly, the accused was presumed to be innocent till he was found guilty; secondly the accused should have right to prepare his defence and prove his innocence before the Court of trial and thirdly the accused should not be punished before finding him guilty. Unfortunately, the ultimate sentence which is to be awarded to the petitioner, if the case is proved against him, is only seven years and out of the said seven years, he had already undergone a period of three years and ten months without any trial and what to take about the conclusion of trial, even its commencement in the near future is not in sight. For the foregoing reasons, the petition is accepted and the petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (one lac) with one surety in the like amount to the satisfaction of learned trial Court. S.A.K./M-401/L Bail granted.