ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

Criminal Bail Application No. 1854 of 2016

 

Applicants:                            (1) Nasir Shah s/o. Zahir Shah.

                                                (2) Adil Sardar Khan s/o. Sardar Khan.

                                                (3) Abdul Rauf s/o. Abdul Karim.

                                                Through M/s Ashraf Ali Shah and Samiullah Abbasi,

                                                Advocates.

 

Respondent:                         The State, through Ms. Rahat Ehsan, DPG.

Complainant:                        Ishtiaq Khan s/o. Rehman Khan,

                                                Through Mr. Gul Zameen Khattak

                                                =========

Date of hearing:                    08.03.2017

Date of order:                        08.03.2017

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O R D E R

 

ZAFAR AHMED RAJPUT, J:-   Through instant criminal bail application, applicants/accused Nasir Shah, Adil Sardar Khan and Abdul Rauf have sought pre-arrest bail in Crime No. 361 of 2016, registered at P.S. Mominabad, Karachi under Section 452/448/506-B/34 P.P.C.  Their earlier bail application bearing No. 2300 of 2016 was heard and dismissed by the learned IVth Additional Sessions Judge, Karachi-West. They were admitted to ad-interim bail by this Court vide order dated 26.12.2016, now they seek confirmation of their bail.

 

2.         Briefly stated, the facts of the case as narrated in the aforesaid F.I.R. are that the complainant Ishaq Khan purchased the houses bearing No. 374, 374-A, 375 and 375-A, situated at Malik Chowk, Mominabad, Sector 4-F, Orangi Town, Karachi from one Mst. Fahmida w/o Munawar Hussain. On 05.11.2016, when the complainant and his family members were sleeping in the said house, present accused along with nine (09) unknown co-accused persons entered into the house at 0400 hours by scaling over the wall and on the strength of weapons, they asked the complainant to vacate the house immediately and thereafter they forcibly dispossessed him and his family members from the said house and also issued criminal intimidation for causing death. 

3.         The learned counsel for the applicants/accused has mainly contended that the accused Nasir Shah is the lawful owner of the subject property and in this respect a Civil Suit bearing No. 1648 of 2016 for declaration, specific performance, cancellation of registered documents and permanent injunction is pending adjudication before the Court of learned XIth Senior Civil Judge, Karachi-West against Mst. Fahmida, complainant and others, which was filed earlier to lodging of the aforesaid F.I.R.; that during pendency of the said suit the complainant forcibly ejected the accused from the premises with the help of police and thereafter F.I.R. was lodged against them; that dispute between the parties is of civil nature but the complainant has converted it into a criminal case with malice and ulterior motives; that there is inordinate delay of 35 days in lodging the F.I.R. but no plausible explanation has been furnished by the complainant in this respect; that the offence under Section 452 P.P.C. being punishable with imprisonment for seven years does not fall within the prohibitory clause of section 497 Cr.P.C., while section 448 P.P.C. is bailable and the ingredients with regard to the offence under Section 506-B P.P.C. are missing; hence, the accused are entitled for confirmation of bail. 

 

4.         On the other hand, learned counsel for the complainant has vehemently opposed this application for grant of bail on the ground that the accused are prima-facie connected with the alleged offence and they have forcibly and illegally ejected the complainant alongwith his family members from their house, which he had purchased under a duly registered sale deed; that the grant of pre-arrest bail is an extra-ordinary concession to accused and the principles for grant of pre-arrest bail are quite different from that of principles for grant of post-arrest bail and no case of malice and ulterior motive has been made out by the accused; therefore, they are not entitled for confirmation of bail.

 

5.         The learned DPG while adopting the arguments of the learned counsel for the complainant has also opposed grant of bail to the accused, on the ground that the accused are prima-facie involved in a case of illegal ejectment of complainant; therefore, their bail application is liable to be dismissed.

 

6.          I have considered the arguments advanced by the learned counsel for the accused, learned counsel for the complainant and learned DPG as well as perused the material available on record.

 

7.         It appears from perusal of the F.I.R. that the alleged offence is stated to have been committed on 05.11.2016 but the F.I.R. was lodged with delay of one month and five days. The learned counsel for the complainant has submitted that the delay has occurred due to non-cooperation of police as on the very day i.e. 05.11.2016 the complainant approached the concerned SHO but he refused to lodged his  F.I.R., thereafter he made a complaint to SSP concerned; however, the learned counsel for the  complainant as well as learned DPG have failed to produce any copy of the complaint showing that the complainant has approached the SHO or SSP concerned for lodging F.I.R.; hence, no explanation is available with regard to the delay in lodging of the F.I.R. It is also a matter of record that civil suit filed by the accused Nasir Shah was earlier to the lodging of F.I.R. by the complainant, wherein not only the complainant is a defendant but also Mst. Fahmida, who is stated to be the former owner of the property, is the party as defendant. In paragraph No.5 of the suit the accused Nasir Shah (plaintiff) has claimed that the defendant (Mst. Fahmida) handed over peaceful and vacant possession of the suit property to him alongwith all original title documents. Under the circumstances, the mala fide intention and ulterior motive on the part of complainant for false involvement of accused in the case prima facie cannot be ruled out. The alleged offence being punishable maximum for seven years, does not fall within the prohibitory Clause of Section 497 Cr. P.C. The accused have joined the investigation and they are attending the trial Court regularly and no complaint of misusing the concession of ad-interim bail has been made. Accordingly, the interim pre-arrest bail granted to the present accused, vide order dated 26.12.2016, is confirmed on the same terms and conditions.  However, in case the accused in any manner try to misuse the concession of bail, it would be open for the trial Court to cancel their bail after issuing them the requisite notice.

 

JUDGE

Athar Zai