2002 PLP 1835 (YLR)

Munir Ahmad Bhatti with Muhammad Sarfraz Awan for Petitioner. Pirzada Mamoon Rashid for the Complainant. Abdul Majid Chishti for the State. Through this order I intend to dispose of bail application of Sarfaraz Awan in case F.I.R No.69 of 2002 registered on 17‑2‑2002 under section 365, P.P.C. on Police Station, Gulshan‑e‑Ravi, Lahore, on the application of Romasa Sohail wife of Sohail Asghar that at 7‑30 p.m. she alongwith her husband Sohail Asghar and Aamer Nazir went to purchase Bakery items from Ali Baba Bakers. Husband of the complainant was standing outside Ali Baba Bakers while the complainant was present outside Ali Baba Bakers and in the Show Room was looking for Shoes. Aamer Nazir was coming out of the shop after the purchase. In the meanwhile a white coloured car came from Samanabad Road which was being driven by Sarfraz Awan and one unknown person whose description is given was sitting op the front side while Safdar cousin of Sarfraz Awan was sitting on the rear seat and it was stopped near the husband of the complainant. A person with beard came out of the car and caught hold of her husband and pushed, him in the car while placing him on the rear seat. Mansoor Awan etc. had taken away Sohail Asghar husband of the complainant while abducting him. Safdar Awan was having a pistol 32 bore.

2. The motive of the occurrence is that a property case of the husband of the complainant with Sarfraz etc. is pending in the Lahore High Court and fixed for 19‑2‑2002. Civil suit is also pending in the Court of learned Civil Judge, Lahore. The occurrence was witnessed by Aamer Nazir and the complainant.

3. Learned counsel for the accused Sarfraz Awan has contended that Sarfraz Awan has enmity with the complainant over a house owned by Mst. Ijaz Asghar mother of Sohail Asghar and mother‑in‑law of Sarfraz Awan valuing about Rupees one crore situate at 139‑B Muslim Town, Lahore. Sohail Asghar has prepared a forged power of attorney on the basis of which the house was to be transferred to another person and filed, a suit for permanent injunction against his mother and civil litigation in the shape of certain civil cases even upto the level of the High Court is pending between the parties. Similarly cross criminal cases have also been got registered by the parties against each other. Earlier F.I.R. No.269 of 2001, dated 20‑4‑2001 under section 365, P.P.C. on the same allegations was got registered by the complainant which was found false and was cancelled as alleged abductee Sohail Asghar was found involved in a criminal case registered vide F.I.R. No. 183 of 2001 on 19‑4‑2001 at Police Station Baseerpur District Okara, registered under the Customs Act and C.N.S.A. The matter was about the possession of the property while on 13‑11‑2001 civil litigation was decided in favour of mother‑in‑law of Sarfraz Awan and against Sohail Asghar the alleged, abductee. Bailiff went to the spot and gave the possession. Inspite of resistence by the complainant Mst. Romaisa the possession was delivered but on the same night the possession was again taken over by Mst. Romaisa complainant and Sohail Asghar on which Writ Petition No.21362 of 2001 was filed by Mst. Ijaz Asghar on the basis of which F.I.R. No.4 of 2002 was registered at Police Station Muslim Town, Lahore, and the wife of Sarfraz Awan accused is a witness of the occurrence in the said F.I.R against the complainant and Sohail Asghar alleged abductee. It is further contended that Criminal Original No. 134 of C‑2001 was also filed in this Court by Mst. Ijaz Asghar. Sohail Asghar and his father‑in‑law are respondents Nos. 1 and 2 while Rana Azhar Abbas is respondent No.3 who is Nazim of Ilama Iqbal Town, Lahore, and possession was given to said Rana Azhar Abbas. Notices were issued by this Court. Bail application of Sohail Asghar, Rana Azhar Abbas and Mian Aziz Ahmad father‑in‑law was dismissed on 26‑2‑2002 in case F.I.R. No.4 of 2002 and Sohail Asghar was arrested. He was allowed bail after some days. Warrant of arrest of Rana Sohail Asghar was also issued by this Court. Criminal Miscellaneous No.382 of 2002 was filed and the learned counsel appeared on behalf of said Sohail Asghar on 19‑2‑2002 and Vakalat Nama had been executed by Sohail Asghar which was filed on 18‑2‑2002 who was allegedly abducted according ,to the complainant on 17‑2‑2002. Case F.I.R. No.324 of 1997 was registered against Sohail Asghar. F.I.R. No.86 of 1997 was registered against him. Then another F.I.R. has been got registered for preparation of forged documents by the mother of Sohail Asghar against him. F.I.R. No.144 of 2001 has also been registered against Sohail Asghar and Rana Azhar Abbas on 27,2‑2001 in which Mst. Romaisa Begum was declared fugitive from justice. It is further contended that in order to pressurise, the number of cases have been registered by Sohail Asghar and Mst. Romaisa Asghar against the petitioner and this case is also one of the series of cases registered with mala fide intention in order to pressurise the petitioner's mother‑in‑law and the petitioner's wife and for restraining them from pursuing their civil litigation as well as criminal litigation against the said Sohail Asghar alleged abductee. It is further contended that, earlier F.I.R No.269 of 2001 was registered at Police Station Sanda, Lahore on the same ground but when Sohail Asghar was found arrested in case F.I.R. No.183 of 2001 at Police Station Baseerpur, he moved an application for grant of bail through Criminal Miscellaneous No. 982/B of 2002 in which he stated that he deals with pesticides business and was arrested in this connection. Hence he has not taken the stand that he was abducted by the petitioner Sarfraz Awan as was stated by his wife while recording the F.I.R. The case was found false and was cancelled. In such circumstances the petitioner is entitled to the grant of bail as the case is totally false and fabricated one.

4. On the other hand learned counsel for the complainant has opposed the bail application of, Sarfraz Awan accused petitioner on the ground that this petition was filed by Mst. Samina Asghar wife of Sarfraz Awan under section 491, Cr. P. C. and bail cannot be granted under section 498, Cr.P.C. as it is a separate, section hence this bail application is not maintainable and is liable to be dismissed. He relies on Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852) in which the august Supreme Court of Pakistan has held that the proceedings under section 491, Cr. P. C. are summary in character and the Court should not involve in factual controversies. He further relies on Aslam Khan v. Director Revenue Recovery PTCL Lahore Telephone Region Lahore and 2 others (2001 PCr.L.J. Page 1596). Bail before arrest according to him is an extra ordinary relief which cannot be granted to an accused person who is nominated in criminal cases previously and recoveries are yet to be effected from him. He is habitual offender. The offence falls within the prohibitory clause. Ipsi dixi of the police is not binding on the Courts. It is further contended that the enmity between the complainant and Sarfraz Awan accused and his wife Mst. Samina Asghar Awan is admitted. It is further contended that the police is in league with said Sarfraz Awan and had kept him in custody without (sic) for three days in order to make a ground for his grant of bail. It is further contended that earlier F.I.R. No.269 of 2001 was registered on the same alle gations but Sohail Asghar was got involved in a case under section 9‑A of Control of Narcotic Substances Act, 1997 and he was forced to thumb‑mark on the white papers and all this was done by the Ranger due to the pressure of Imran Asghar, Squardan Leader and real brother of Sohail Asghar. It is further contended that Sohail Asghar has been recovered and he is present in the Court who also states that he was abducted by the petitioner. His bail may be dismissed.

5. I have heard the learned counsel for the parties and also perused the record. Criminal Miscellaneous No.280/H of 2002 was filed by Dr. Sameena Asghar in this Court alleging that her husband Sarfraz Awan petitioner is involved in case F.I.R. No.69 of 2002, but has not been produced before any Magistrate since 17‑2‑2002 and is being illegally confined at Police Station Gulshan‑e- Ravi, Lahore. This Court deputed the bailiff to recover Sarfraz Awan and produce him in this Court on the same day. S.H.O was also directed to appear alongwith the record of the abovesaid case. Sarfraz Awan husband of Dr. Saeema Asghar stated in the Court that he was arrested on 17‑2‑2002 at 7‑45 p.m. and was kept in illegal confinement, at Police Station Gulshan‑e‑Ravi, Lahore and was not produced before any Magistrate. Roznamcha was taken by the bailiff into his custody. The Investigating Officer of the case F.I.R. No. 69 of 2002 was present in the Police Station. According to the bailiff the alleged detenu was found in the room of Investigating Officer from where he was recovered. He told the bailiff that he was arrested on 17‑2‑2002 and was illegally confined. No entry of the arrest of Sarfraz Awan was found in the daily Roznamcha. S.H.O. Police Station Gulshan e‑Ravi was present on the said date alongwith the record and stated that Sarfraz Awan had entered appearance in the police station on that day just before the arrival of the bailiff and he was sitting with the Investigating Officer and denied his arrest on 17‑2‑2002. Reference, was made by the learned counsel for the petitioner that as the Naib‑Moharrir Muhammad Amin had stated before the bailiff which was duly reported by him in his report that Asghar Ali, A.S.I. had arrested Sarfraz Awan the alleged detenu in case F.I.R. No.69 of 2002 and he was in police custody since then i.e. 17‑2‑2002 hence, it was found by this Court that he was kept in illegal confinement. Prayer was made that the petition milt be converted into bail application and the alleged detenu might be allowed bail before arrest. Due to the peculiar circumstances of the case and as it was also brought to the notice of this Court that earlier criminal case F.I.R. No.269 of 2001 was registered on 20‑4‑2001 under section 365, P.P.C. on the same allegations which are levelled in case F.I.R. No.69 of 2002 against Sarfraz Awan and after thorough investigation the case being found false was cancelled and the factual position is that said Sohail Asghar was involved in case F.I.R. No.183 of 2001 on 19‑4‑2001 at Police Station Baseerpur District Okara, registered under the Customs Act, this Court found it a fit case for conversion of habeas corpus into bail application while relying upon Riaz Ahmad v. D. S. P. and others (1999 PCr.LJ 993) and Mst. Shamim Akhtar v. S.E.O. (1999 MLD page 3373) and converted the habeas corpus petition into bail application which was numbered as Criminal Miscellaneous No. 1380/B of 2002 and ad interin bail before arrest was granted to Sarfraz Awan accused till the next date of hearing. However, the said accused was directed to appear before the S.H.O. but it was brought to the notice of this Court that the investigation of this case has been transferred to Mr. Umar Virk, D.S.P. who was also directed to appear in the Court on the next date of hearing. On 28‑2‑2002 Prizada Mamoon Rashid, learned counsel for the complainant also entered appearance. As the investigation was not yet started by Mr. Uniar Virk, D.S.P. he was directed to find out the truth and to appear in this Court on 4‑3‑2002. The case was adjourned for 4‑3‑2002 and part‑heard arguments were heard on behalf of the accused. On 6‑3‑2002 on the request of the police as it could not finalize the investigation instead of joining of both the parties in the said investigation case was adjourned with direction to Mr. Umar Virk, D.S.P. to complete the investigation. The alleged detenu appeared before the Investigating Officer on 13‑3‑2002 but as the D.S.P. was on leave the case was adjourned for today. Mr. Umar Virk, D.S.P. has entered appearance and has concluded the investigation. According to his investigation the case is totally false and he has recommended for the cancellation of the case. Moreover, Sohail Asghar is the real brother of Dr. Samina Asghar wife of Sarfraz Awan alleged accused and mother of Sohail Asghar alleged abductee, Mst. Ijaz Asghar present in Court supports that Sohail Asghar 'has not been abducted by anybody and this case, has been registered to pressurize Sarfraz Awan, Dr. Samina Asghar and Mst. Ijaz Asghar for restraining them from pursuing their cases against said Sohail Asghar and to deprive them of their valuable property valuing Rupees one crone situate at 139‑B New Muslim Town, Lahore.

6. As I have noticed that number of criminal cases have been registered against Sohail Asghar by Mst. Ijaz Asghar his mother in which Dr. Samina Asghar wife of Sarfraz Awan accused is witness and they are party alongwith the mother of Sohail Asghar against Sohail Asghar, hence chances of false implication of Sarfraz Awan cannot be ruled out due to the registration of the case specially when the possession of the bungalow was delivered by the bailiff of Civil Court after the decision of civil revision on 13‑11‑2001 by this Court but subsequently Mst. Romaisa the complainant of case F.I.R. No .69 of 2002 who even had resisted at the time of possession to be delivered by the bailiff but in the night again possession was taken over by Sohail Asghar and Mst. Romaisa and F.I.R. No.4 of 2002 was registered at Police Station New Muslim Town, Lahore. Wife of Sarfraz Awan accused is a witness to this occurrence. Similarly Criminal Original No. 134 of 2001 has been filed by Mst, Ijaz Asghar and Dr. Samina Asghar in this Court. Sohail Asghar is respondent No. 1 while his father‑in‑law is respondent No.2 and Rana Azhar Abbas is respondent No.3 and the possession of the house was delivered to Rana Azhar Abbas who is Nazim of Illama Iqbal Town, Lahore. Notice were issued by this Court. Sohail Asghar etc. were arrested on 26‑1‑2002 in this case but he was granted bail subsequently. In an application vide Criminal Miscellaneous No.382/B‑2002 counsel for Sohail Asghar had entered appearance on 19‑2‑2002 in this Court in which vakalatnama has been filed duly signed by said Sohail Asghar on 18‑2‑2002 one day after the registration of case F.I.R. No.69 of 2002 for the abduction of Sohail Asghar. This fact cannot be ignored while deciding this bail application as earlier F.I.R. No.269 of 2001 was registered which is ditto copy of F.I.R. No‑69 of 2002 by the same complainant for the abduction of said Sohail Asghar which was subsequently found false and case was re commended for cancellation as the said Sohail Asghar was found arrested in case F.I.R. No.183 of 2001 registered at Police Station Baseerpur, District Okara on 18‑4‑2001 under sections 178(8)/756(2) of the Customs Act and section 9‑C of C.N.S.A. Sohail Asghar in his application for bail after arrest has stated that he had gone to Depalpur in connection with pesticide business and Pak I Rangers had arrested him in that case. In such circumstances there seems the tendency of the complainant for registering false cases against Sarfraz Awan previously on the same allegations which were found incorrect and false. Hence, in the peculiar circumstances of the case the contention of the previous chequered history of litigation on the criminal and civil side amongst the complainant and the alleged abductee Sohail Asghar on the one side and Mst. Ijaz Asghar, mother of Sohail Asghar, Dr. Samina Asghar wife of Sarfraz Awan and Sarfraz Awan on the other side is found correct.

7. The objection of the learned counsel for the complainant about the maintainability of this bail petition being converted the same from habeas corpus' petition is not borne out as this Court in extraordinary circumstances has always converted the habeas corpus petitions into bail applications and has decided the same on merit. Due to the chequered history between the parties narrated above I do not find any force in the arguments of the learned counsel for the complainant hence bail application is being decided on merits. Further objection that the said accused should approach the Court of first instance, the powers under section 498, Cr.P.C can be exercised by this Court directly in certain cases. As previous litigation is pending in this Court after the dismissal of the civil revision through contempt petition for the taking of the possession by said Sohail Asghar from the mother of Samina Awan petitioner in habeas corpus petition this Court can entertain this petition directly instead of sending them to approach the Court of first instance in view or the criteria laid down in Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256). This view is also affirmed in Mukhtar Awan's case reported in 1991 SCMR 322 wherein the august Supreme Court of Pakistan has held that only propriety demands that the case should be sent to the Court of first instance but the High Court, can decide the bail application directly if arrives at a conclusion that it is liable to be decided at the level of High Court directly and the application for cancellation of bail by the Supreme Court on this ground was dismissed.

8. In such circumstances due care and caution was to be taken as this Court is the custodian of the rights of the people and is bound to save innocent persons from the clutches of the police if are being involved in criminal cases for pressurising to be restrained from pursuing the cases on civil and criminal side against the complainant party. This fact has been verified by Mr. Umar Virk, D.S.P. who has himself investigated the case and after recording the statements of the witnesses has come to a definite conclusion that the case is false. In such circumstances the petitioner has succeeded in making out a case for bail before arrest which is meant to protect the innocent citizens in a criminal case.

9. In such circumstances the ad interim pre‑arrest bail already granted to the petitioner vide order; dated 21‑2‑2002 is confirmed subject to his furnishing fresh bait bonds in the sum of Rs.2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the learned Judicial/Ilaqa Magistrate, Lahore. N.H.Q./S‑430/L Pre‑arrest bail granted