2009 P Cr (PLP)

FAISAL ARAB, J.

Through this common order, the above mentioned . two bail applications moved by accused Mushtaq Ahmed Solangi and Muhammad Boota shall be disposed of as they arise from the same F.T.R. bearing No.28 of 2008, filed under sections 161, 420, 468, 471, 477-A, 34 P.P.C. read with section 5(2) Act II-1947, Police Station ACE, Karachi.

2. On the application of the complainant, an inquiry was conducted into the allegations that the functionaries of the Revenue Department in collusion with private accused persons committed forgery in the Revenue Record in relation to 500 square yards of land that was part of Survey No.301, Deh Mehran, Malir. In the F.1.R., it is stated that originally Survey Number 301 was owned by Shaheed Zulfiqar Ali Bhutto, the former Prime Minister of Pakistan but through fraudulent means a bogus Entry bearing No.1650 dated 17-11-1981 was kept in the village Form No. VII of the Revenue Record, showing transfer of 500 square yards from Survey No.301 in favour of Muhammad Boota. On the basis of this bogus entry, Muhammad Boota first obtained sale certificate from the accused Mushtaq Ahmed Solangi, who was Mukhtiarkar at the relevant time and then on the strength of such sale certificate, Muhammad Boota got a general power of attorney registered in favour of his son. .

3. Mr. M.A. Kazi Advocate, who is appearing in Criminal Bail Application No.1342 of 2008 for the accused Mushtaq Ahmad Solangi argued that Sale Certificate was issued on the basis of the entry, which was already on the Revenue Record since 1981 and therefore, Mushtaq Ahmed Solangi himself did not play any role in recording the fraudulent entry. He further contended that the sale certificate that was issued, expired after two months and subsequently when Mushtaq Ahmed Solangi stood transferred, the Sale Certificate was validated by his successor and therefore no case is made out against Mushtaq Ahmed Solangi. He further contended that as the punishments for the alleged offences do not fall within the prohibitory clause of section 497 of Cr.P.C., therefore, Mushtaq Ahmed Solangi is entitled to be released on bail.

4. Learned Assistant Advocate-General argued that on the examination of the disputed entry, it becomes quite apparent that forgery has been committed as the disputed Entry No.1650 in the village Form No.VII of the Revenue Record was kept by forging the signature of the Mukhtiarkar and Tapedar who were posted at the relevant time i.e. 17-11-1981 and Mushtaq Ahmed Solangi issued sale certificate on the basis of such forged entry. It was argued that either Mushtaq Ahmed Solangi was himself instrumental in maintaining a back dated forged entry or should have ensured that sale certificate is not issued on the basis of forged entry.

5. Mr. Mazhar Ali Chohan, who is appearing in Criminal Bail Application No.1192 of 2008 for the accused Muhammad Boota argued that the alleged forgery pertains to the year, 1981, whereas the F.I.R. has been lodged in September, 2008 i.e. after a delay of 27 years and therefore bail be granted on account of such inordinate delay. He further contended that in fact forgery was committed by one Haji Muhammad Alam, who gifted the said land to his son Khursheed Alam in 1980, who then sold half of the land i.e. 250 square yards to two persons namely Mukhtiar Butt and Sarfaraz Aslam and not Muhammad Boota. He further argued that the entry in the name of applicant Muhammad Boota does not mean that he himself committed forgery as anyone can get the disputed entry recorded in the Revenue Record in the name of Muhammad Boota. Therefore, who committed fraud would be established in the evidence that is to be recorded at the trial and at this stage the concession of bail may not be denied. He further contended that as the punishments for the alleged offences do not fall within the prohibitory clause of section 497, Cr.P.C., therefore, Muhammad Boota is entitled to be released on bail. He lastly submitted that in case the applicant is finally acquitted then his time in jail would not be compensated in any manner.

6. Learned counsel for the State, while also opposing grant of bail to the accused Muhammad Boota, contended that in the F.I.R. it is clearly mentioned that on account of forgery in the Revenue Record an area of 500 sq.yds. from Survey No.301 was entered in the name of applicant Muhammad Boota, who on the strength of such entry, obtained Sale Certificate from the Mukhtiarkar and on the basis of such Sale Certificate, Muhammad Boota executed general power of attorney in favour of his son. He further contended that applicant Muhammad Boota is the beneficiary of his own fraud and no one else and therefore he is not entitled to the concession of bail.

7. No doubt, fraudulent entry is dated 1981 but it does not mean that the same was also kept in the year, 1981. A fraudulent back dated entry can be kept subsequently having a date of 1981. Therefore, the contention that there is an inordinate delay of 27 years in registering F.I.R. is of no legal consequence.

8. In so far as the case of Mushtaq Ahmed Solangi is concerned, who was posted as Mukhtiarkar Malir from April, 2005 to October, 2005, no doubt he issued sale certificate in favour of the co-accused Muhammad Boota but this he did on the basis of Entry No.1650 dated 17-11-1981. Whether this forged entry was inserted in the Revenue Record during his tenure or prior to his tenure needs to be inquired into. Therefore a case for further inquiry is made out by Mushtaq Ahmed Solangi and at this stage of the case, he is entitled to be released on bail.

9. However, insofar as the case relating to the beneficiary of the forgery i.e. Muhammad Boota is concerned, even if the naive argument of his counsel that any one can insert false entry in Muhammad Boota's name in the Revenue Record is accepted, and if that was so, then why there is absolutely no explanation when Muhammad Boota himself applied for grant of sale certificate on the basis of forged entry and on the strength of the sale certificate which he obtained, why he executed before the Sub-Registrar a registered general power of attorney in favour of his son. Mr. Chohan, his learned counsel, when confronted with this factual aspect of the case, failed to give any explanation. With regard to the argument of section 497 of Criminal Procedure Code, the Supreme Court in the case reported in 2008 SCMR 807 refused to grant bail, though the punishment for the offence was five years as there was overwhelming material on record to connect the accused with the alleged offence. Relying on the said judgment and unrefutable involvement of the accused in the alleged offence, no case for grant of bail is made out in favour of accused Muhammad Boota.

10. Resultantly, bail in Bail Application No.1342 of 2008 moved by Mushtaq Ahmed Solangi is granted in the sum of Rs.500,000 with P.R. bond in the like amount to the satisfaction of the trial Court. However, Bail Application No.1192 of 2008 filed by accused Muhammad Boota is dismissed. H.B.T./M-36/K Order accordingly.