ORDER SHEET
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1721 of 2016
Cr. Bail Application No.1866 of 2016
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Date Order with Signature(s) of Judge(s)
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For hearing of Bail Application.
Mr. Aamir Mansoob Qureshi Advocate for Applicants in Criminal Bail Application No.1721/2016.
Mr. Asif Ali Pirzada Advocate for the Applicant in Criminal Bail Application No.1866/2016.
Mr. Ashfaq Rafiq Janjua, Standing Counsel.
I.O./Inspector SLK Shahbaz, FIA/ACC, Karachi.
Muhammad Jawwad son of Ms. Humaira Shahid is present.
Date of hearing : 03.01.2017 & 04.01.2017
Date of Order : 09.01.2017
ORDER
Abdul Maalik Gaddi, J. – Through this common order, I intend to dispose of the captioned bail applications, as these bail applications relate to the same FIR. By means of these bail applications, the applicants (1) Fawad Rehman son of Fazal-ur-Rehman, (2) Mukhtar Ahmed Chauhan son of Muhammad Anwar Chauhan and (3) Shakoor Ahmed son of Zahoor Ahmed seek post-arrest bail in case Crime No.38 of 2016, registered under Section 419/420/468/471/109/34 PPC read with Section 5(2) of PCA-II, 1947 & Section 30(f) of NADRA Ordinance 2000 at police station FIA/ACC, Karachi.
2. The facts as stated in FIR, reads as under:-
“Consequent upon enquiry No.33/2016 of FIA, Anti-Corruption Circle, Karachi registered on the complaint of Humaira Shahid Hassan resident of 1/6, Ahmed House, MCHS, Shaheed-e-Millat Road, Karachi to the effect that she entered into deal for the purchase of House No.21/88, Memon Co-operative Society, Block No.7-8, Karachi against the payment of Rs.14,400,000/- which was owned by Samina Shahid, who purchased said property from (1) Muhammad Hashim son of Noor Muhammad, (2) Muhammad Junaid son of Habib Noor Muhammad, (3) Sitara Bibi wife of Malik Rehmatullah and (4) Ghulam Sabir Malik son of Abdul Malik Rehmatullah, as result to Decree issued against Suit No.952/2015 by the Hon’ble Sindh High Court, Karachi. The deal was registered at Sub-Registrar-I, Jamshed Town, Karachi. The possession of purchased house was taken by her on 06.05.2016. After about one month on 07.06.2016. One Mukhtar reached at above property and claimed to be owner of above property purchased by him from one Usama son of Qasim, allegedly legal heir of above property. In support of his version he produced copies of various documents including CNIC in the name of Osama Bin Qasim showing his residential address of the aforesaid property House No.21/88, Memon Cooperative Society, Block 7-8, Karachi.
During the course of enquiry, it has been established that in order to acquire the aforesaid property through fraudulent means and to create fictitious/fake/bogus ownership of aforesaid property, the accused Fawad Rehman son of Fazal-ur-Rehman managed to get issue CNIC in the name of Osama Bin Qasim son of Muhammad Qasim in collusion, in connivance and in abetment of NADRA officer namely Shakoor Ahmed, Deputy Superintendent NRC, New Karachi by fraudulently inserting the name of Osama Bin Qasim in the family tree of Muhammad Qasim son of Allah Deen resident of House No.8, Block 109, Sector 11-D, Karachi, who categorically denied that neither he is his father nor Osama Bin Qasim is his son and further confirmed that his family consisting of 6 family members i.e. Muhammad Qasim CNIC No.42101-3287709-9 (Self), Shakeela CNIC No.42101-8153982-8 (wife), Muhammad Haris CNIC No.42101-0551690-3 (son), Jahan Ara CNIC No.42101-5810091-6 (daughter), Muhammad Kashan CNIC No.42101-0457545-3 (son), and Baby Bisma CNIC No.42101-5523293-0 (daughter), whereas, the name of Osama Bin Qasim showing himself as his son and Mst. Mehbooba Bano showing herself as his wife has illegally been inserted in his family tree with the motive of some vested interest.
It has further established that accused Fawad Rehman presented Mukhtar Ahmed, who is his servant, as buyer. Accused Fawad Rehman with the connivance of NADRA official though managed to enter Osama Bin Qasim in the family tree of Muhammad Qasim son of Allah Deen in order to impersonate himself as the family member/son of Late Muhammad Qasim (actual owner of property) obtained CNIC fraudulently to add the first name “Qasim” in his CNIC mentioning his address of alleged property, failed and could not manage to get enter Osama Bin Qasim in the family tree of actual Muhammad Qasim.
It has further revealed that the previous owner Muhammad Qasim expired in the year 1997. The accused in order to match the parentage of Osama fraudulently used the family tree of another Muhammad Qasim, who is alive as mentioned hereinabove.
Therefore, from the enquiry conducted, it has established beyond any doubt that the swindlers accused persons Fawad Rehman son of Fazal-ur-Rehman Mukhtar Ahmed son of Muhammad Anwar Chauhan, Usama Bin Qasim son of Muhammad Qasim and Shakoor Ahmed, ERP 6599 of NADRA NRC New Karachi in connivance, in collusion and in abetment of each other fraudulently managed/prepared forged documents/ID papers/card to usurp the valuable property i.e. House No.21/88, Memon Co-operative Society, Block No.7-8, Karachi, thus, committed the offences punishable under Section 419/420/468/471/109/34 PPC read with Section 5(2) PCA-II, 1947 and Section 30(f) of NADRA Ordinance, 2000, hence, after obtaining permission from the competent authority registered this case against the above named persons and others and effected the arrest of accused Fawad Rehman son of Fazal-ur-Rehman and Mukhtar Ahmed Chauhan son of Muhammad Anwar Chauhan.”
3. It appears from the record that bail applications were moved on behalf of the applicants/accused before the Special Judge (Central-II), Karachi, but the same were rejected vide order dated 29.11.2016 and 09.12.2016 respectively. Thereafter, applicants/accused approached this court.
4. Mr. Aamir Mansoob Qureshi, learned counsel on behalf of applicants/accused Fawad Rehman and Mukhtar Ahmed Chauhan has contended that the applicants/accused are innocent and have been falsely implicated in this case by the complainant, who is the Investigating Officer of the case in connivance with the FIA officials just to show efficiency to his high ups. Per learned counsel, in the month of March 2016, applicant Fawad Rehman met one Osama Bin Qasim (absconding accused), who shown himself to be the owner of the property in question and offered him to purchase the said property, as such, said Osama Bin Qasim arranged a physical visit with the applicant/accused at the said property and informed him that the said property was originally owned by his deceased mother Mehbooba Bano, who died in the year 1992, when he was two years old and later on the ownership of the property was transferred to his father while in the year 1997 his father also died, leaving behind him as his only legal heir when the said Osama Bin Qasim was only seven years old. Per learned counsel, said Osama Bin Qasim was a child, therefore, the property was under care of his maternal aunt namely Sitara Jabeen but his said aunt under malafide intention wants to usurp the said property and on asking the documents of the property, his aunt informed that the documents are missing, for which, Osama Bin Qasim lodged a report at police station. Per learned counsel, in the month of April 2016, after satisfaction the applicant Fawad Rehman had agreed to purchase the property from Osama Bin Qasim in the name of his employee, applicant Mukhtar Ahmed Chauhan and the applicant Fawad Rehman made advance/token money of Rs.2,000,000/- out of total sale consideration of Rs.20,000,000/- and executed an agreement to sell in between Osama Bin Qasim and applicant Mukhtar Ahmed Chauhan. According to learned counsel, surprisingly in the month of May 2016, it came to knowledge of the applicants that Mst. Sitara Jabeen has started demolishing the said property, therefore, the applicants filed a civil suit bearing No.1309/2016 for specific performance of agreement to sell before the Hon’ble High Court of Sindh against the said Osama Bin Qasim, his aunt and another and as such, the Hon’ble High Court of Sindh vide order dated 31.05.2016 pleased to suspend the demolishing work at the said property. Thereafter, it came to knowledge of the applicants that aunt of Osama Bin Qasim had filed a suit No.951/2015 in which they have shown to be the lawful owners of the said property and sold out the same to one Samina Shahid and the suit was decreed, for which Osama Bin Qasim filed an application under Section 12(2) CPC for setting aside the said judgment and decree, which according to him was obtained by way of fraud and misleading of the Hon’ble High Court. Per learned counsel, the applicants/accused have nothing to do with the issuance of fake/forged CNIC to said Osama Bin Qasim. Per learned counsel, at the time of execution of agreement to sell between the applicants/accused and said Osama Bin Qasim, they were completely unaware about suit No.951/2015 and the applicant Fawad Rehman was agreed to purchase the said property, only when he was shown the NICs of the deceased parents of said Osama Bin Qasim, thus, submitted that applicants/accused have no concerned in managing to get forged CNIC for the said Osama Bin Qasim. Per learned counsel, regarding issuance of alleged fake/forged CNIC to Osama Bin Qasim, a C.P. for correction of his family tree in the record of NADRA was filed by him which was disposed of by the Hon’ble High Court of Sindh vide order dated 25.08.2016 and consequently said Osama has preferred CPLA No.663-K of 2016, before the Hon’ble Supreme Court which has also been disposed of vide order dated 23.12.2016, thus, submitted that the case requires further enquiry. Per learned counsel, the applicants/accused just went into an agreement to purchase a property and that the case is of civil nature and also sub-judice before the competent court of law. Learned counsel further submits that the controversy in between the parties regarding the title of the property is pending in the High Court in Civil Suits Nos.951/2015 and 1309/2016, but this false case has been registered just to deprive and pressurize the applicants/accused from their legal entitlement. Per learned counsel, on the basis of FIR and documents on record, there is no cogent evidence to connect the applicants/accused with the instant crime and mere nomination by the FIA allegedly during the course of inquiry is not enough and has no weight in the eyes of law. He further submits that all the offences under which the present applicants are booked, either bailable or their punishment do not fall within the prohibitory clause of Section 497 Cr.P.C. Investigation has been completed and it is yet to be determined at the time of trial whether the applicants/accused have facilitated the absconding accused Osama in the commission of the offence, therefore, the detention of the applicants/accused for indefinite period would not serve the purpose, therefore, learned counsel for the applicants/accused while relying the following case laws has prayed that this is a fit case for further inquiry, thus, they may be released on bail.
“i. Tariq Bashir and 5 others v. The State reported in PLD 1995 SC 34;
ii. Mian Ijaz Shafi v. Syed Ali Ashraf Shah & 11 others reported in PLD 1995 SC 43;
iii. Saeed Ahmed v. The State reported in 1996 SCMR 1132;
iv. Sameen Jan (Naib Tesildar) and others v. The State reported in PLD 2011 SC 509;
v. Makhdoom alias Zameer Ahmad v. Noor Ahmed and another reported in 2003 YLR 2335;
vi. Muhammad Ashraf v. The State reported in 2003 MLD 165;
vii. Muhammad Younus and another v. The State reported in 2001 P.Cr.L.J 157;
5. Mr. Asif Ali Pirzada, learned counsel on behalf of applicant/accused Shakoor Ahmed submits that the applicant is innocent, has been falsely implicated by the Investigating Officer of the case at the instigation of Mst. Humaira Shahid. It is also argued that the only evidence collected by the Investigating Officer is the officials of the NADRA, New Karachi, Central District. The Investigating Officer has shown different roles of the different officials posted in the said Centre and nothing specifically has been shown against the present applicant, only to the extent that the applicant allegedly issued approval of NIC in favour of one Osama Bin Qasim, who subsequently filed application under Section 12(2) CPC in Suit No.951/2015. He argued that Mohammad Jamal Jelani was the Senior Executive/Incharge of the Centre, which is admitted by the Investigating Officer. Per learned counsel, the applicant/accused has never been involved in any forgery case in past. He further argued that the offences under which the applicant/accused has been booked, either bailable or their punishment do not fall within the prohibitory clause of Section 497 Cr.P.C. Investigation has been completed and this accused is no more required for investigation. Nothing exceptional has been made out in the case to withhold bail of the applicant/accused, therefore, under the aforementioned facts and circumstances, he prayed for grant of bail in favour of the applicant/accused. In support of his arguments, he has relied upon the case of Nooruddin and others v. The State reported in 2011 SCMR 1319, Zafar Iqbal v. Muhammad Anwar and others reported in 2009 SCMR 1488.
6. Learned Standing Counsel has argued that present applicants/accused as well as absconding accused and others for their common object in collusion and in abetment of each other fraudulently managed/prepared forged documents/ID papers/Card to usurp the valuable property in question; that the applicants/accused if released on bail, they would abuse the concession by absconding or tampering with the prosecution evidence or will indulge in commission of crime of similar or other offence. During the course of arguments, learned Standing Counsel has pointed out that in this case, inasmuch as, Eighteen (18) prosecution witnesses have been examined under Section 161 Cr.P.C. and they have supported the prosecution case. He further argued that on the basis of documents and evidence collected by the Investigating Officer during investigation prima facie it appears that the applicants/accused are involved in the commission of offence, which is serious in nature and against the society. It is also argued that the applicant/accused Shakoor while posted as Deputy Superintendent, NRC-New Karachi processed the CNIC in dispute by inserting the name of absconding accused Osama Bin Qasim in the family tree of one Muhammad Qasim and later on the said CNIC was used by the absconding accused and others to usurp the valuable property involved in the case, hence, opposed for grant of bail in favour of the applicants/accused. In support of his arguments he relied upon the case of Muhammad Siddique v. Imtiaz Begum and 2 others reported in 2002 SCMR 442 and Muhammad Naseem v. The State reported in 2012 P.Cr.L.J 918.
7. Mohammad Jawwad son of Mst. Humaira Shahid has also been heard. During his submissions, he also adopted the arguments as advanced by the learned Standing Counsel, however, he has also filed objections against these bail applications, the same have been considered in which he has reiterated the same facts and grounds, which the learned Standing Counsel have argued at the time of hearing.
8. I have heard the learned counsel for the parties and have also examined the record, so made available, carefully.
9. As per FIR and the investigation conducted by the Investigation Officer, the allegations against applicants/accused Fawad Rehman and Mukhtar Ahmed are that they in order to acquire the immovable property bearing House No.21/88, Memon Co-operative Society, Block No.7-8, Karachi through fraudulent means and to create bogus ownership of aforesaid property, they managed to get issue CNIC in the name of Osama Bin Qasim son of Muhammad Qasim in collusion, in connivance and in abetment of NADRA officer namely Shakoor Ahmed, Deputy Superintendent NRC-New Karachi by fraudulently inserting the name Osama Bin Qasim in the family tree of Muhammad Qasim. It has also been revealed from the record that accused Mukhtar Ahmed claimed that he is also one of the owner of the property in question as he purchased the said property from Osma Bin Qasim through Agreement to Sell dated 05.04.2016 in the sum of Rs.200,000,00/- (Rupees Two Crore only) out of which Rs.20,00,000/- (Rupees Twenty Lac only) was paid to him as token money and the remaining amount was settled to pay on or before 05.06.2016. When Osama did not execute the sale deed in favour of Mukhtar Ahmed, he filed a civil suit bearing No.1309/2016 for specific performance of agreement to sell, declaration, permanent injunction and damages against Osama and others before this Court, in which stay order is operating in favour of accused Mukhtar Ahmed. It has also been revealed that at the same time, Osama Bin Qasim had also filed an application under Section 12(2) of CPC in civil suit No.951/2015, which was already decreed by way of compromise. In the application of 12(2) CPC, the Osama had also claimed his ownership in the property in question and challenged that the judgment and decree in the said suit had been obtained by the parties by mis-representation of facts and not joining him as party and on his application, the operation of the judgment and decree dated 18.06.2015 and 12.09.2015 respectively in said suit was suspended. Under these circumstances, it appears tentatively that the dispute in between the parties is of civil in nature and also sub-judice before the High Court with regard to the title of ownership in respect of property in question and it is yet to be determined by the court that which of the person having legal title of the said property and it is also yet to be determined whether these applicants have facilitated to Osama to get fake CNIC from NADRA office with the collusion of accused Shakoor Ahmed. All these facts required evidence and till such time, the case of the applicants/accused requires further inquiry. Even otherwise, there is only allegation against the applicant Fawad Rehman and Mukhtar Ahmed for abetment or to facilitate the accused Osama in preparation of forged CNIC. This allegation could only be considered after the completion of trial, which requires further evidence. Mere mentioning the names of the applicants/accused in the FIR is not enough to connect the accused persons in the crime.
10. As far as, the allegations against the accused Shakoor Ahmed is concerned, the only allegation against him that this accused has allegedly issued approval of CNIC in favour of Osama Bin Qasim. Investigating Officer of the case during investigation has shown different roles of different officials posted in the Centre of NADRA for preparation of CNICs but those have not been shown as accused in the case. These aspects of the case also require further probe whether these applicants only actively involved in preparation of fake CNIC in favour of the Osama.
11. Undeniably, case of the prosecution is entirely based upon the documentary evidence and relevant record has already been collected and seized by Investigating Officer and same is in the custody of the prosecution, hence, there is no apprehension of tampering with prosecution evidence. Challan has been submitted as stated by the learned counsel for the applicants/accused; therefore, the accused persons are no more required for investigation. Offences under Section 419/420/468/471/109/34 PPC read with Section 5(2) of PCA-II, 1947 are punishable up to seven years, while Section 30(f) of NADRA Ordinance 2000 is punishable up to five years or fine, hence, alleged offences against the accused persons do not fall within the parameters of restraining clause of Section 497(1), Cr.P.C. It is settled that while dealing with the question of bail, court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of Tariq Bashir and 5 other v. The State reported as PLD 1995 SC 34, wherein it has been mentioned that Section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with death, imprisonment of life or imprisonment for ten years (2) offences punishable for imprisonment of less ten years, the principle to be deduced from this provision of law is that non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal and exception. So the bail will be declined only in extraordinary and exceptional cases, for example:---
(a) Whether there is likelihood of abscondence of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) Where that is danger of the offence being repeated if the accused is released on bail; and
(d) Where the accused is a previous convict.”
This principle has also been reiterated in the case of Zafar Iqbal v. Muhammad Anwar and others reported in 2009 SCMR 1488, Riaz Jafar Natiq v. Muhammad Nadeem Dar and others reported in 2011 SCMR 1708, Muhammad Younus and another v. The State reported in 2001 P.Cr.L.J 157 and so also in the case of Muhammad Ashraf v. The State reported in 2003 MLD 165.
12. Nothing on record that applicants/accused are previously convict in such like cases. As observed above, civil litigation has already been commenced in between the parties, as such this case requires evidence with regard to the title of the ownership in respect of the property bearing House No.21/88, Memon Co-operative Society, Block No.7-8, Karachi. Besides, no exceptional circumstances appear in this case to withhold bail to the applicants/accused. The accused persons are behind the bar since their arrest and the investigation has been finalized, and the allegations against them are yet to be proved through evidence in the court, as such, further detention of the accused persons in this case at this stage would not serve the purpose.
13. I have perused and considered the case laws cited by the learned Standing Counsel in support of his arguments, but did not find applicable to the facts of the present case, hence, not helpful for him.
14. For what has been discussed above, the case against the applicants/accused call for further inquiry into his guilt covered by sub-section (2) of Section 497 Cr.P.C. The bail applications are, therefore, allowed and the applicants/accused are admitted to bail subject to their furnishing solvent surety in the sum of Rs.3,00,000/- (Rupees Three Lac) each and P.R. bond in the like amount to the satisfaction of the trial court. Since challan has been submitted, hence, learned trial court is directed to complete the trial as early as possible within three (03) months, after receipt of this order. Investigating Officer of the case, present in court, is directed to produce all the witnesses before the trial court at his own responsibility. No adjournment shall be granted, unless otherwise unavoidable and the compliance report shall be sent to this court through MIT-II.
15. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial court while deciding the case of the applicants/accused on merits.
JUDGE
Faizan A. Rathore/PA*