IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
(1) Crl. Bail Appln. No. S- 519 of 2023.
Applicant: Muhammad Ali Panhwar, through Messrs Ashique Ali Jatoi and Naseer Ahmed Waggan, Advocates.
(2) Crl. Bail Appln. No. S- 528 of 2023.
Applicants: 1. Manzoor Ali Jokhio.
2. Shoukat Ali Shar, through Messrs Ghulam Ali Abbasi and Mumtaz Ali Panhwar, Advocates.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Complainant: Abdul Latif, through Mr. Gul Muhammad Pathan, Advocate.
Date of hearing: 18.03.2024.
Date of Order: 18.03.2024.
Date of reasons: 29.03.2024.
ORDER
Muhammad Saleem Jessar, J- This common order would dispose of the captioned two bail applications, as the same are interconnected and arisen out of same case/ crime.
2. Crl. Bail Appln. No. S- 519 of 2023 has been filed on behalf of applicant Muhammad Ali son of Abdul Karim Panhwar. Whereas, Crl. Bail Appln. No. S- 528 of 2023 has been filed on behalf of applicants Manzoor Ali son of Wahid Bux Jokhio and Shoukat Ali son of Matlo Khan Shar, in case vide Crime No. 100 of 2023 registered at P.S Darri, Larkana, for offenses punishable under Sections 420, 406, 506 (2) and 380 P.P.C.
3. The applicants approached the Court below with the same prayer, which have been declined by learned VI-Additional Sessions Judge, Larkana, vide two separate Orders dated 06.09.2023 and 11.09.2023, respectively.
4. It appears that, on 14.8.2023 complainant Abdul Latif Panhwar appeared at Police Station Darri, Larkana and recorded his statement in a book under Section 154 Cr.P.C. The exact wording of the complainant’s statement is reproduced hereunder:
“It is complaint that accused Muhammad son of Abdul Karim is my real nephew. He resides with me in Quarter No.B-13, near Garib-Muqam, Machhi Market. Accused Manzoor Ali son of Wahid Bux Jokhio resident of Ali Gohar Abad, 3. Accused Shoukat son of Matlo Shar resident of Hayat Hulio Larkana in collusion with each, while showing me as dead, recorded their statements before Mukhtiarkar Sahab and Tapedar Sahab have committed forgery in the record; the accused persons have recorded false statements and by preparing fake heir-ship certificate have sold out my house and other properties by showing me as “dead” and have also been extending threats of murder. That, on 20.06.2023, I was present in the house and at about 10.00 a.m. my son-in-law Haji Mehboob son of Wajid Ali came to meet me, which accused Muhammad Ali become annoyed and asked that why they are coming to home; I asked him that he is my son-in-law and he would come into home, as such he become annoyed and took out pistol and extended threats of murder and while pushing me ousted me from the house and taken papers and disclosed that you are “dead” in the papers and the house and properties are mine. I, made complaints to “nekmards”; the accused did not pay heed to anybody and has occupied and is not sharing the rent of the half of house which is rented out. I being 75 years old poor retired employee am homeless. Accused has insulted me. It is requested that F.I.R may be registered, which will meet ends of justice.”
5. Heard learned counsel for the applicants, learned Addl. P.G appearing for the State, so also learned Advocate for complainant and gone through the material made available before me on record.
6. It is mainly contended by learned counsel for applicants that father of the complainant was the owner of Municipal Residence Quarter No.13-B, situated at Garib Muqam Colony, Larkana. He further contended that the allegations as leveled in the F.I.R are incorrect as none of the applicants sold out the house in question by showing complainant as dead and applicant/ accused Muhammad Ali, the nephew of complainant had never moved any application to concerned quarters regarding change of “Foti-Khata”, nor he sold it out to third party as claimed by the prosecution. He further added that the sections applied in the F.I.R carry punishment upto only seven years, as such does not exceed the limits of prohibitory clause of Section 497 Cr.P.C. In support of his contentions, learned counsel placed his reliance upon case of Muhammad Nazir v. Fazal Karim and others (PLD 2012 SC 892) and Iftikhar Ahmad v. The State (PLD 2021 SC 799).
7. On the other hand, learned Add. P.G. appearing for the State opposed the grant of bail to applicants by contenting that, it is case of prosecution that father of the complainant, namely, Abdul Rehman at the time of his death had left four sons, namely, Abdul Karim, Abdul Sattar, Ali Muhammad and complainant Abdul Latif and two daughters, namely, Mst. Aasia wife of Khadim Hussain and Mst. Rubina wife of Deedar; however three brothers of the complainant, namely, Abdul Karim, Abdul Sattar and Ali Muhammad have expired, whereas his sisters Mst. Asia and Rubina are alive including complainant, therefore, the accused by showing the complainant to be dead have committed forgery, hence they are not entitled to bail.
8. Learned Advocate for complainant also opposed the bail application. He contended that applicant Muhammad Ali, who is nephew of the complainant in order to deprive the complainant of his due share has committed fraud by moving application to Land Officer of Municipal Corporation Larkana seeking mutation/ change of “Foti-Khata” in their favour by getting issued the Heirship certificate from Mukhtiarkar Larkana in the year 2022. In support of his contentions, he placed on record a copy of Heirship certificate issued by Mukhtiarkar Larkana vide No. TM/- 208 of 2022 dated 23rd Septemb4r, 2022. Learned counsel further contented that after change of “Foti-Khata” said quarter has been sold out to one Rizwan Arif son of Arif on 30.10.2022 and in support of his this contention learned counsel placed on record a copy of Order No. LO/LMC/- 373, dated 30.10.2022 issued by Land Officer, Municipal Corporation Larkana. He further added that, there is sufficient material on record in shape of documentary evidence which fully connect the accused with commission of alleged offense; therefore, they are not entitled for extra ordinary relief in shape of concession of pre-arrest bail.
9. I have given due consideration to the submissions made by the learned counsel for parties and perused the record.
10. In view of the arguments advanced by the learned counsel for respective parties, during pendency of the bail application the Land Officer of the Municipal Corporation Larkana was called, who put his appearance on 07.03.2024 and filed set of documents including the application dated 19.01.2022 along with affidavit submitted by applicant/ accused Muhammad Ali, whereby he had mentioned that his grandfather had expired, therefore, he intended to get the quarter in question transferred in the name of legal heirs of deceased/ grandfather Abdul Rehman and upon receipt of such application, he was directed to bring Heirship certificate, as such he produced such certificate, which reflected that sons of his grandfather, namely, Abdul Karim, Abdul Sattar, Ali Muhammad and Abdul Latif (complainant) have expired, whereas Mst. Asia and Rubina are alive, hence upon basis of such Heirship certificate his case was proceeded and it was approved by the then Administrator and consequently the Land Officer issued Order of change of tenancy on the basis of sale agreement allegedly executed by legal heirs of deceased Abdul Rehman vide office No. LO/ LMC/373, dated 30.10.2022. The Land Officer of the Municipal Corporation Larkana further submitted that, thereafter the present complainant moved application dated 19.10.2023 to the Municipal Commissioner Larkana and after due process the allotment issued in favor of accused Muhammad Rizwan was cancelled and quarter in question was restored to original allottee Abdul Rehman.
11. Basically, it is the case of complainant/ prosecution that, applicant/ accused Muhammad Ali moved application to Larkana Municipal Corporation annexing therewith a Heirship Certificate (obtained by him from Office of Mukhtiarkar Larkana) with version that his grandfather had expired, mentioning in his application that except two females, all other legal heirs of his grandfather have expired by concealing the fact that complainant (being son of grandfather of accused Muhammad Ali) was alive. Applicant/ accused Muhammad Ali obtained such Heirship certificate on the basis of statements of co-applicants/ accused Manzoor Ali Jokhio and Shoukat Ali Shar. Consequently, on the basis of such Heirship Certificate the mutation in respect of quarter in question was changed. Not only this but, later-on the applicant/ accused Muhammad Ali vide agreement dated 14.10.2022 sold out the quarter in question to one Rizwan Arif. These allegations of the prosecution/ complainant fully get support from the documentary proof(s)/ evidence. Prima-facie, there appear reasonable grounds that the applicants/ accused in collusion with each other have committed the offenses, with which they are charged.
12. Furthermore, it is well settled principle of law that, concept of pre arrest bail is exceptional and it has to be exercised sparingly and carefully; the purpose behind it, is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. It is also settled law that, concession of pre-arrest bail could not be allowed to an accused person unless the Court felt satisfied about seriousness of the accused's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police. But, herein this case, there appears no malice, malafides or any animosity on the part of complainant and or prosecution to falsely implicate the applicants in the commission of alleged offence.
13. The Hon’ble Supreme Court in case of Rana Muhammad Arshad v. Muhammad Rafique and another reported in PLD 2009 S.C- 427, established framework and the guidelines, within which the jurisdiction vested with the High Courts and the Courts of Session is to be exercised. Those guidelines were summarized as under:
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons agaisnt victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not only guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonor him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law.
14. The case of applicants does not come within the framework and guidelines established by the Hon’ble Apex Court in case of Rana Muhammad Arshad v. Muhammad Rafique and another (supra) and most of those components are lacking in the case.
15. In view of above circumstances, the applicants do not appear to be entitled to concession of extra ordinary relief of pre arrest bail. Accordingly, these bail applications were dismissed vide short order dated 18.03.2024, whereby interim pre arrest bail granted to applicants in both bail applications was re-called and they were taken into custody and remanded to jail; and these are the reasons for the short order.
16. It is however, made clear that, the observations made hereinabove are tentative in nature and shall not prejudice the case of either party in the trial.
Judge
Ansari