2006 P Cr (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

This bail application has been moved on behalf of the applicants Muhammad and Husnain Tapal who are involved in Crime No.63 of 2005 registered at Police Station A.C.E. Karachi under sections 219, 420, 468, 471/34, read with section 5(2) Act II, 1947. ?

2. Briefly, the prosecution case is that certain land was allotted to Applicant No. 1 in. Deh Sharafi, Karachi East which was subsequently transferred in the name of applicant No.2 at the request of applicant No.1 and he was put in physical possession of the said land. Applicant No.2 thereafter received a notice dated 12-7-2005 from D.D.O. (Revenue), ,Karachi alleging therein that he has encroached upon Government land and the same was fraudulently got transferred in his name, he was therefore, directed to vacate the said land. Applicant No.2 challenged the said notice by filing Suit No.900 of 2005. Along with the suit an injunction application was also moved in which ad interim stay was granted in favour of applicant No.2.

3. On 1-9-2005 applicant No.2 filed an application under section 3 of Contempt of Court Act against the defendants in the said suit for violating stay order. When the said contempt application came up in Court, it was stated by learned A.A.-G. that the concerned Mukhtiarkar had wrongly submitted comments in favour of the plaintiff/applicant No.2 by forging the signature of D.O. (Revenue). It was also stated that the documents relied upon by the plaintiff/applicant No.2 were forged and bogus. Consequently, E.D.O. (Revenue) was directed to initiate disciplinary proceedings against the said Mukhtiarkar and recommend for lodging F.I.R. against the Mukhtiarkar or against any other person. On the basis of this order, F.I.R. No.63 of 2005 was registered at Police Station A.C.E. Karachi. The case has been challaned by A.C.E. in which the applicants have been shown as absconders. Therefore, the police is chasing the applicants, besides the police has surrounded the Court of Special Judge, A.C.E., as such it is not possible to approach the trial Court. The applicants have, therefore, filed the present application for grant of pre-arrest bail as they apprehend arrest and subsequent humiliation and maltreatment.

4. Bail is pressed on the ground that the applicants have been falsely and maliciously implicated in the case by Anti-Corruption Authorities. That there was no specific direction for registration of a case against the applicants. Applicant No. 1 was lawfully allotted the land which was subsequently, transferred in the name of applicant No.2 by the competent authority, there is no evidence of mens rea against the applicants, sections 219, 420 and 471, P.P.C. are bailable and section 468, P.P.C. is non-cognizable whereas section 5(2) Act II, 1947 is, at all, not attracted as the applicants are not public servants and so far as common intention is concerned, the same could only be determined during the course of trial. It is further contended that civil suit in which the order of registration of F.I.R. was passed is still pending wherein an application has already been moved for expunction of remarks of the Honourable Judge and the decision on the said application as well as main suit shall have bearing on the criminal proceedings and that there is delay of 11 days in lodging the F.I.R., as such possibility of mala fide implication of the applicants cannot be ruled out.

5. The learned State Counsel contended that although on merits the applicants have a good case for bail, but as a matter of propriety the applicants should have first approached the lower Court, instead of directly coming to this Court for grant of pre-arrest bail.

6. Learned counsel for the applicants in rebuttal of the plea raised by the learned State Counsel, has contended that as the fact of registration of F.I.R. has been widely reported in the newspapers, the police has intensified the single entrance and exit leading to the trial Court thereby has made it impossible for the applicants to approach the competent Court and furthermore in view of the order passed by the learned Single Judge (O.S.) of this Court, the learned trial Court would be embarrassed and would hesitate to grant the concession of pre-arrest bail to the applicants, as such, according to him, this is an exceptional case and is fit for exercise of concurrent jurisdiction by this Court. In support of this plea, he relied upon various decisions of the superior Courts including the one given by the Honourable Supreme Court in the case of Rais Wazir Ahmed v. The State 2004 SCMR 1167 wherein it was held that in compelling circumstances a person can approach the High Court directly by invoking its concurrent jurisdiction.

7. There can hardly be any dispute to the proposition that rule of propriety demands, that in normal course, a person against whom a criminal case has been registered, should approach the Court having jurisdiction for seeking bail before arrest, and this Court should be slow in directly entertaining applications for pre-arrest bail unless the applicant/accused satisfies the Court that there are exceptional and/or compelling circumstances to justify the exercise of concurrent jurisdiction in bail matters. I am of the view that the circumstances and the grounds raised are adequate enough to invoke the concurrent jurisdiction in the instant case.

8. Learned State Counsel, having not been able to controvert on merits the contentions raised on behalf of the applicants, has conceded to the grant of pre-arrest bail. However, he requested that in the peculiar circumstances of the case, the surety amount may be enhanced. Even otherwise, from the perusal of the material available on record, it appears that there is no allegation that the applicants were incharge or in custody of relevant record or had any authority or access to enable them to prepare any such illegal or bogus documents to benefit themselves. Besides, the civil suit in which the order for registration of F.I.R. was passed, is still pending and will be decided after the entire evidence is recorded, till such time the involvement of the applicants in the commission of offences of fraud and forgery cannot be presumed, as such the case of the applicants calls for further inquiry. In view of above, the interim bail granted to the applicants on 6-2-2006 is confirmed. However, the amount of surety is enhanced from 2,00,000 to Rs.3,00,000 (Rupees three lacs only) each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. Bail application stands disposed of accordingly. H.B.T./M-50/K??????????????????????????????????????????????????????????????????????????????????? Bail confirmed.