2005 PLP 516 (YLR)

8. There is no denying fact that the F.I.R. has been lodged with the delay of about 1‑1/2 years. The incident allegedly had taken place in the month of February, 2002. The report regarding the same to the police was made on 21‑7‑2003. It thus was about 1‑1‑/2 years after the same. This delay is significant in the matter and apparently casts doubt on the veracity of the prosecution/allegation against the petitioner. I, however, avoid to comment any further on this aspect of the matter lest it may be prejudicial to either of the parties at any subsequent stage of the case.

9. It however, may be mentioned here that Mr. Mahboob Qadir Shad, learned Addl. Sessions Judge, Lahore has refused him the similar relief vide his order, dated 16‑9‑2003 observing that it is very difficult for him to hold that the case was registered sheerly out of mala fide. It was when he himself had observed that the petitioner by producing certain documents before him has disclosed his strong defence. He in this regard has further observed that if in the investigation, it may be found that the building stood demolished in July, 2001 as is the case of the petitioner, then the prosecution/allegation would prove false. It may be noteworthy here that the case of the complainant is that the said building was demolished in February, 2002.

10. Here I failed to understand that when the learned Addl. Sessions Judge had found that the petitioner has disclosed a strong defence on the basis of the documents produced by him and that there is likelihood of proving complainant's story /allegation to be false in the investigation, then what other proof of existence of mala fide on his part was required to be given. This circumstance reflecting from the facts of the case on record was sufficient indication or proof of mala fide on the part at least of the complainant in the matter. It may also be mentioned that the petitioner has agitated the question of existence of mala fide of the complainant against him in his application before him even. It is as follows:‑‑ (b) That the above case has been got registered against the petitioner in order to humiliate the petitioner with mala fide intention and connivance of the police of the area. This clearly shows that the plea of the petitioner of mala fide of the complainant against him was before him. The matter had not ended here. His learned counsel rather had in fact agitated such matter before him at the time of arguments in his that application before him. This is so evident from his following lines in the said order:‑‑ "That this case has been registered in order to build pressure and extort money from the petitioner/accused."

11. Here it would also be quite relevant to reproduce his above indicated observation in the matter:‑‑ "...I do feel that a strong defence is made out from aforementioned documents if considered along with a considerable and most unusual delay of more than one and half year in registration of this case and I also concur that in case if it is found in investigation that the building had in fact been demolished/raised to the ground in July, 2001 the prosecution story would certainly prove as false. In the light of aforementioned defence yet to be concluded, it is very difficult to hold out of available record that the case was registered sheerly out of mala fides." Almost similar contention regarding the mala fide on the part of the complainant has been raised even before me by his side as is evident from the above mentioned arguments advanced on his behalf. The learned Additional Sessions Judge thus was not justified in refusing him the relief prayed for by him before him particularly in view of his above observation solely for the reason that he could not find mala fide in the matter, while it was very much present as mentioned above.

12. However, another aspect of the matter is that whether the offence under section 454, P.P.C. can be attracted in this case. To determine such question the provision of section 454, P.P.C. is to be looked into. The same is as follows:‑‑ "Lurking house‑trespass or house breaking in order to commit offence punishable with imprisonment.‑‑‑Whoever commits lurking house‑trespass or house breaking, in order to committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years."

13. Here the provision of section 443, P.P.C. would also be relevant to mention to see that what lurking house trespass is. The same is as follows:‑‑ "(443) Lurking house-trespass. Whoever commits house‑trespass having taken precaution to conceal such house‑trespass from some person who has right to exclude or eject the trespasser from the building, tent or vessel which in the subject of the trespass, is said to commit `lurking house trespass'."

14. The complainant himself had mentioned in the F.I.R. that the petitioner and others had entered in his office in the presence of his servant Abdul Sattar. So it means that he or his companions, if it all the allegation may be accepted as it is did not conceal their identity to that person before entering the same. Therefore, it is yet to be ascertained that if on that allegation, he can be held liable for the offence under section 454, P.P.C. or any other. Apparently, the said allegation attracts an offence under section 451, P.P.C. The same is bailable.

15. It has also been mentioned above that Aman Ullah, S.‑I. has stated before me that the petitioner did not enter the office of the complainant to commit theft and that he had not committed any theft there. Therefore, it is also yet to be seen that if he can be held liable for the offence under section 380, P.P.C. Hence, all such questions render his case as one of further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497, Cr.P.C.

16. He admittedly has joined the investigation and is not wanted any further for purpose of the same or recovery.

17. In these circumstances, the petition is accepted and the ad interim pre‑arrest bail already granted to him is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Ilaqa/Duty Magistrate.

18. He, however, shall join police investigation again, if and when so required to do. N.H.Q./J‑108/L Pre‑arrest bail granted.