Babu Ameer Ali etc. vs The State etc.

Criminal Misc. No.5536-B-2013

Babu Ameer Ali,etc. The State, etc.

30-05-2013 Mr. Abdul Jabbar Awan, Advocate with petitioners. Mr. Muhammad Nawaz Shahid, DDPP for the State. Mr. Muhammad Ajmal Adil, Advocate for complainant. Shabbir Ahmad, ASI with record.

Babu Ameer Ali & Ramzan Ali, the accused- petitioners seek their pre-arrest bail in case FIR No.16- 2013, dated 07.01.2013, registered under Sections 420, 468 & 471 PPC at P.S. Kotwali, Faisalabad.

2.The allegation against the petitioners is that they are marginal witnesses of the sale deed which has been got executed and registered on the basis of fictitious agreement to sell prepared in favour of Maqbol Ahmad, co-accused.

3.Learned counsel for the petitioners has contended that case against the petitioners is false and fictitious one; that the petitioners are only marginal witnesses of sale deed, which was duly registered before Sub-Registrar and they are not beneficiary of the document in-question; that nothing is required to be recovered from him, therefore, they are entitled to the confirmation of pre-arrest bail. He has relied on “Muhammad Aslam. Vs. The State.” (2009 P.Cr.R.

1252), “Sakina Bibi, etc. Vs. The State, etc.

(2011 P.Cr.R. Lahore 320) & “Abdul Rasheed,etc. Vs. The State” (2010 P.Cr.R. Lahore 191).

4.This application has been opposed from complainant side and it is contended that the petitioners were part and parcel of the fraud allegedly committed by co-accused Maqbool Ahmad in preparing the forged and fictitious agreement to sell on behalf of the complainant and disposing of his property by deceitful manners. The complainant filed a suit for cancellation of document in-question. The case was registered and Saqlain appeared before I.O. who stated that no record of stamp paper was available and Sabir through which stamp paper was purchased, stated that he did not purchase any stamp paper, therefore, they are not entitled to the confirmation of their pre- arrest bail. Learned counsel for the complainant has relied upon “Sh. Muhammad Sadiq. Vs. The State, etc.” (2013 P.Cr.L.J.

Lahore 252) & “Muhammad Tariq. Vs. Addl: Sessions Judge, etc.” (2012 P.Cr.L.J.)

5.Arguments heard and record perused.

6.The petitioners have not been assigned any role in preparation of alleged forged document in-question in favour of Maqbool Ahmad. They are only signatories of said alleged sale deed as marginal witnesses and they are not beneficiary of the said document. The civil litigation regarding the matter in dispute is pending before the competent Court of law. The alleged agreement to sell was prepared on 11.09.202 and on the basis of which, main accused Maqbool Ahmad filed a suit for specific performance on 07.06.2003 before the Civil Court,

whereupon, the complainant filed a suit for cancellation of the said agreement on 26.06.2003 and both suits were consolidated by the learned trial Court and the complainant after 11-years with malafide intention and ulterior motive got registered the instant FIR. The said alleged agreement to sell had been produced before the Court and the said Court can take cognizance of offence referred under Section 195(1)(C) Cr.P.C. which is reproduced as under:-

Prosecution of contempt of lawful authority of public servant:

Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence:--

(1)No Court shall take cognizance.

(a)---------------

(b)---------------

(c)Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

The Investigating Officer did not collect any material evidence against the present petitioners. The said alleged agreement to sell has been exhibited in evidence and same is also not available on record. The prima-facie, the petitioners could not be held guilty. The offence under Sections 468 & 471 PPC is not cognizable, whereas offence under Section 420 PPC is compoundable. None of the alleged offences fell within prohibitory clause of Section 497 Cr.P.C. Nothing is required to be recovered from them; therefore, their arrest in this case will bring undue humiliation for them in the public. In such

circumstances, they are entitled to the confirmation of their pre- arrest bail.

Resultantly, the instant petition is accepted and pre- arrest bail already granted to the present petitioners is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000/- with one surety each in the like amount to the satisfaction of learned trial Court.

(Aalia Nelum) Judge

Approved for Reporting

Judge *R.Yousaf