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Petitioner: ALTAF HUSSAIN VS Respondent: MANSOOR QADIRHonorable Justice Khawaja Muhammad SharifCh.Muhammad Afzal Wahla and Taqi Ahmad Khan,Mazhar Iqbal Sidhu
2005 M L D 224
2005 M L D 224
[Lahore]
Before Khawaja Muhammad Sharif, J
ALTAF HUSSAIN ‑‑‑Petitioner
Versus
MANSOOR QADIR and others‑‑‑Respondents
Crl. Misc. No.7194‑CB of 2004, decided on 4th November, 2004.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.497(5) & 498‑‑Penal Code (XLV of 1860). S.420‑‑‑Bail before arrest, cancellation of‑‑Accused persons had signed a forged agreement to sell which was prepared by absconding accused‑‑‑Petition writer had deposed that he had copied the contents of a writing on the Stamp Paper provided by the accused and had not written the agreement in the presence of the parties‑‑‑Though the accused persons were not the direct beneficiaries of the said agreement but the question was as to why they had signed an agreement which never existed between the parties‑‑ Actual beneficiary was not arrested‑‑‑Original sale agreement in question was not produced‑‑‑Case, in circumstances was not one for bail before arrest‑‑‑Order of bail before arrest being not sustainable in law, was set aside and bail was cancelled in circumstances.
The State v. Muhammad Jawwad Ghani 2004 PCr.LJ 1610 quoted.
Ch.Muhammad Afzal Wahla and Taqi Ahmad Khan for Petitioner.
Mazhar Iqbal Sidhu for Respondents.
Syed Akmal Hussain Naqvi for the State with Niamat Ali S.I with record.
ORDER
It is contended by the learned counsel for the petitioner that, it was not a case of bail before arrest as far as respondents Mansoor Qadir and Javed Iqbal are concerned; that they had signed an agreement to sell which neither existed nor was signed by the complainant. While advancing his arguments, in support of this bail cancellation petition, learned counsel submits that since the said sale agreement is yet to be recovered and since the reasons given by the learned Additional Sessions Judge while granting bail before arrest to the petitioners vide order dated 27‑9‑2003 are not sustainable in law, it would be in the interest of justice if their bail before arrest is cancelled. Reliance is placed on The State v. Muhammad Jawwad Ghani (2004 PCr.LJ 1610), in support of the above submissions.
2. On the other hand, learned counsel for the respondents, while defending the bail before arrest granting order, submits that the petitioners are not beneficiaries, that the actual beneficiary is Zubair Ahmad; that the respondents had only signed the said agreement which is sought to be recovered from them; that they did not misuse the concession of bail and that the civil litigation was pending between the parties prior to the registration of the present F.I.R. While concluding his submission, learned counsel submits that the bail granting order is not perverse, therefore, the same is not liable to be interfered with by this Court.
3. Learned counsel for the State, in addition to the submissions made by the learned counsel for the respondents, states that there is nine months delay in lodging the F.I.R.; that section 420, P.P.C. is bailable while section 471, P.P.C. is non‑cognizable and that the offence does not falls within the prohibitory clause of section 497(1), Cr.P.C.
4. I have heard learned counsel for the parties, have gone through the record, the bail granting order, the statement of the petition writer, and have also given anxious consideration to the submission made by the respective parties at the bar. In the instant case, the allegation against Zubair Ahmad accused is that a forged agreement to sell was prepared by him and the present respondents were signatories to that agreement. Even otherwise, affidavit of the petition writer has been placed on record whereby he has denied to have written the agreement in question in the presence of the parties. According to his statement one Shahbaz had, brought a Stamp Paper of Rs.100 and a writing before him to write the same on it. Though the respondents are not the direct beneficiaries of the said agreement but the question remains as to why they had signed an agreement which never existed between the parties. Considerations for the grant of bail before arrest and for the grant of bail after arrest are totally different. Zubair, the actual beneficiary has not been arrested so far. Even the original sale agreement in question has not been produced before the police. It is not a case of bail before arrest. Learned counsel for the petitioner has rightly relied upon Muhammad Jawwad Ghani's case (supra) wherein this Court, on its own, took suo motu notice as the accused persons in the said case, who were marginal witnesses of the agreement, were granted bail before arrest by the learned Additional Sessions Judge. In that judgment, while canceling their bail before arrest, this Court also discussed section 195, Cr.P.C. and further observed that since such type of incidents being on the peak, therefore, the same were required to be curbed with iron hands.
5. In view of the above backdrop of the case, this Court is of the prima facie view that the bail before arrest granting order of the learned Additional Sessions Judge dated 27‑9‑2004 is not sustainable in law, the same is set aside, the bail of the respondents is hereby cancelled and it is declared that the above observations are only tentative in nature and should not influence the learned trial Court during trial.
M.I./A‑327/L Bail cancelled.