2008 PLP 2423 (YLR)

KAZIM ALI MALIK, J.

Abu Bakkar, petitioner, was arrested in case No.968 dated 28-7-2007 under sections 420/467/468/471, P.P.C. registered at Police Station Saddar Faisalabad and was declined bail by the learned trial Court as well as the learned Court of Session, Faisalabad. Hence, this bail petition.

2. Hakeem Muhammad Shoaib, member Management Committee of Jameh Masjid Ahl-e-Hadith Chak No. 209-RB, District Faisalabad got registered the above said case with an allegation that Abu Bakkar, petitioner, sold a plot measuring about 6 Marlas located adjacent to the Mosque in favour of Management Committee of the Mosque claiming to be its owner; that he received sale price of Rs.3,70,000 through a cheque payee's account only and that later on it revealed that the petitioner/accused claimed ownership over the above said plot on the basis of fake, forged and bogus copy of Jamabndi.

3. The learned counsel for petitioner has contended that the Investigating Agency could not collect an iota of evidence in support of the charge of forgery and that at the most the offence with which the petitioner stood charged, falls under section 420 P.P.C, which is bailable.

4. The learned Law Officer assisted by the learned counsel for complainant opposed the bail application on the ground that the petitioner claimed to be owner of the disputed plot on the basis of forged copy of Jamabandi and was, therefore, connected with the charge of forgery.

5. I have carefully examined the record in the light of counter versions of both the sides. The petitioner produced two copies of Jamabandi before the Management Committee of the mosque claiming to be owner in possession of the disputed plot. Photo static copies of the said documents are available on this file as Mark-A and B. I have compared these copies of Jamabandi with the entries of original Jamabandi produced by the Patwari. On comparison I have noticed that the entries in favour of Abu Bakkar, petitioner, given in the copies Mark-A and B are not in line with that of the Jamabandi. The name of Abu Bakkar, petitioner, does not figure in the register of Jamabandi against Khewats in question Nos.31 and 43 min. When confronted with the above said state of record the learned counsel for petitioner has attempted to argue that. Patwari present in Court issued copies Mark-A and B. The Patwari has disowned his signatures on the disputed documents by saying that he neither prepared the copies in question nor issued to the petitioner/accused. Be that as it may the fact remains that Abu Bakkar, petitioner, was/is not the owner of the disputed property. He has got to concern with the disputed property. He wrongly claimed to be its owner before the complainant. He received Rs.3,70,000 from the Management Committee of the Mosque through cheque in consideration of the property not vested in him. He used fake and bogus copies of Jamabandi as genuine ones and caused wrongful loss to the mosque and wrongful gain to himself. Being beneficiary of the fake and bogus copies of Jamabandi the petitioner cannot be absolved of his liability for the charge of fraud, cheating and forgery.

6. The learned counsel for petitioner has lastly argued that the petitioner returned the above said amount to one of the members of the Management Committee of the mosque and that at one time Deputy District Public Prosecutor, Faisalabad formed an opinion that the provisions of sections 467/468/471, P.P.C. were not applicable and that an appropriate remedy available to the complainant was to approach civil Court for recovery of the disputed amount. For two reasons I do not feel inclined to attach any importance to the above said opinion of the Deputy District Public Prosecutor. First, the opinion/report stands rebutted and belied by the documentary evidence. I have observed in the preceding paragraph that the Patwari disowned his signature on the disputed copies of Jamabandi. The entries of Mark-A and B favourable to the petitioner were not found in conformity and in line with that of the Jamabandi. Secondly, it is the evidence which determine the question of guilt or innocence of the accused and it is totally immaterial as to which opinion has been formed by the legal cell of the Investigating Agency.

7. It is true that the offence against the petitioner does not fall within the prohibitory clause of section 497, Cr.P.C. Despite this the petitioner is not entitled to bail as a matter of right. The petitioner is not willing to pay back Rs.3,70,000 to the mosque, which he received deceitfully. In the circumstances I do not feel inclined to allow him bail at this stage. The bail application is, therefore, dismissed. H.B.A.T/A-81/L Bail refused.