IN THE
HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 887 of 2017
Kamran
Ahmed Siddiqui and another
.....
..Applicants
Versus
The
State
.
..
.Respondent
------------------------------
Criminal Bail Application No. 1040 of 2017
Muhammad
Mubeen and another
...
..Applicants
Versus
The
State
.
..
.Respondent
Date
of hearing and order : 26.07.2017
Mr. Muhammad Waseem
Samo, advocate for applicants in BA No.887/17
Mr. Abdul Samee, advocate
for applicants in BA No.1040/17
Mr. Mian Khan Malik, advocate
for complainant
Mr. Zafar Ahmed Khan,
Addl.P.G.
O R D E R
Fahim
Ahmed Siddiqui, J: By this single order, I am
going to dispose of the two bail applications filed on behalf of applicants namely
(i) Kamran Ahmed Siddiqui & (ii) Abdul Jabbar (BA No. 887/2017, which is
pre-arrest bail u/s 498 CrPC) as well as applicants namely (i) Muhammad Mubeen
& (ii) Muhammad Moosa (BA No. 1040/2017, which is post arrest bail u/s 497
CrPC). Both the bail applications
are dealt-with simultaneously because both bail applications are based on one
and the same FIR. In the said FIR, the complainant Syed Naseeruddin Hussaini
lodged FIR No. 263/2017 against the applicants of later bail application at PS Sachal,
Karachi under Sections 471, 202, 447, 468, 467 & 34 PPC.
2.
The
learned advocates for the applicants and the learned Prosecutor enjoyed the
full opportunity of addressing the Court. I have considered their submissions
and gone through the record of the case. From whatever said and produced before
me, I have observed as under;
(a)
The
allegations against the applicants are that they had taken possession of Plot
No. CM-55 of Gawalior Cooperative Housing Society, Karachi which allegedly belongs
to complainant and they have managed and prepared false and fabricated
documents of the said plot and raised construction upon it. It is also alleged
that when the complainant party contacted the accused persons, they annoyed and
issued threats of murder and also warned them not to visit the said plot,
otherwise they would not be spared.
(b)
It
is worth mentioning that there are no allegations against accused Kamran and
Jabbar (accused of pre-arrest bail No. 887/2017) in FIR and their names
appeared in the Final Report only. The allegation against accused Jabbar is
that he is the witness of the agreement of sale, while accused, Kamran is the
purchaser of plot. Both the parties are claiming ownership of the plot in question
as both are in possession of documents signed by the same 'Administrator', who
was appointed by the Registrar Cooperative Society.
(c)
It
has also come on the record that the said plot was transferred in the name of
Kamran on 05-01-2014 and NOC from the society was issued on 13-08-2015.
Subsequently, accused Kamran sold out the said plot to accused Mubeen (accused
of post arrest bail No. 1040/2017) on 17-06-2015 and the said plot was
transferred in his name on 24-08-2015, and the accused Jabbar signed the
document as witness. It has also come on record that after purchasing, accused
Mubeen raised construction and built a house in which he is residing with his
family. The allegation against the applicant Mubeen and his father Moosa is
that they have encroached upon the plot of complainant. Apparently, the only
criminal folly of accused Moosa is that he is residing in the house built on
the plot in question with his son.
(d)
In
my humble view, if there is any malpractice involved in this case then the same
was done during a period when the said society was under the administration of
Registrar Cooperative Societies through the 'Administrator' and the officials
are also involved in the matter, as construction of house on the plot cannot be
done in a society without the active connivance of the administration of the
society. I am of the view that if such is the position then the matter is
required to be referred to Anticorruption Establishment. In the existing
position of affairs, it is a fit case of further inquiry.
(e)
In
the instant matter, complainant and accused persons both are claiming to be
owner of the plot, as such both of them are claiming that they are members of
Gawalior Cooperative Housing Society. It is worth noting that under section 54 (b)
of Cooperative Societies Act, 1925 in case of any dispute between members or
past members or persons so claiming, the matter is to be referred to
Registrar or his nominee for decision through arbitration. I am of the view
that unless a decision of the Registrar comes that the accused persons are not
the member and/or past member of the society, the matter again requires further
enquiry and without approaching to the Registrar, lodging of FIR cannot be
considered as free from malice.
3.
The
upshot of the above discussion is that not only a case of confirmation of bail
to the applicants (i) Kamran Ahmed Siddiqui & (ii) Abdul Jabbar (BA No.
887/2017) is made out but also the applicants (i) Muhammad Mubeen & (ii)
Muhammad Moosa (BA No. 1040/2017) are entitled for post arrest bail.
Resultantly interim pre-arrest bail granted to the applicants (i) Kamran Ahmed
Siddiqui & (ii) Abdul Jabbar is confirmed on the same terms and condition,
while the applicants (i) Muhammad Mubeen & (ii) Muhammad Moosa (BA No.
1040/2017) are admitted to bail subject to furnishing surety of Rs.50,000/-
each up to the entire satisfaction of the trial Court. I have already decided
both the bail applications through my short order dated 26-07-2017 and the above
are the reasons for the same.
J U D G E