Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 04.06.2011
Date of order : 04 .06.2011
Applicants : Bashir Ahmed and another,
through Mr. Zulfiqar Ali Shaikh Advocate
Versus
Respondent : The State
through Ms.Seema Zaidi, APG a/w Sabir Meerani, Mukhtiarkar, Bin Qasim Town.
O R D E R
Aqeel Ahmed Abbasi, J. The applicants have sought bail in Crime No.18/2011 registered on 15.03.2011 under Section 8(1) Sindh Public Property Act 2010 at P.S. Anti-Encroachment Sindh, Karachi. Briefly the case of the prosecution against the applicants as stated in the FIR is as under:-
"I, Sabir Hussain S/o Mohammad Saleh, Mukhtiarkar Bin Qasim Town Karachi accompanying D.O. Revenue Karachi and police official reached at Dhoro Bhenis Colony. Where some persons occupied Government land measuring 6 Acres and made construction there upon. Police officer along with other officials made circle around the persons and made interrogation then they asked their names as 1. Faqeer Baig S/o Rasheed Baig 2. Fazal Ghani S/o Bilal Khan 3. Saleh Rehman S/o Abdul Rehan 4. Mustaque S/o Mohammad Sadique 5. Akhalaque S/o Qadeer Ahmed all of them arrested by the police on the spot and above arrested persons asked the names of their absconded company as I, Bashir Abbasi S/o Fareed Ahmed 2. Rawat Khan S/o Unknown 3. Qasim S/o Unknown 4. Nadeem Butt S/o Unknown 5. Aijaz Ahmed S/o Unknown. Now my claim against the arrested and absconded persons that they occupied the Government land and illegally constructed there upon. Therefore this crime registered under section 8(1) of Sindh Property Act 2010."
2. After investigation of the case, challan has been submitted before the learned trial Court.
3. Learned counsel for the applicants has contended that the applicants are innocent and have been falsely implicated in the instant crime. Per learned counsel, allegation against the applicants for having encroached the Government land is totally incorrect whereas no construction whatsoever has been raised nor any encroachment has been made by them. Per learned counsel, the FIR is vague, whereas no specific role has been assigned to the applicants. Per learned counsel, there is inordinate delay in lodging the FIR for which no plausible explanation has been given. Per learned counsel, neither recovery of any article nor any construction by the applicants on the alleged encroached land has been shown. Per learned counsel, the applicants have been implicated just to cause harassment and humiliation with mala-fide intention of the prosecution for personal gain. It is further argued that the alleged offence does not fall within the prohibitory clause of sub-section (2) of section 497 Cr. P.C. Per learned counsel, it is a case of further inquiry. It is further contended that in view of the record available with the Mukhtiarkar, who is present in Court, the applicants have no concern with the alleged encroachment on the government land. Per learned counsel, in Crl. Bail Application No.445/2011 co-accused have already granted bail, therefore, keeping in view the rule of consistency, the ad-interim pre-arrest bail granted to the applicant may be confirmed in the same terms. In support of his contention on application of rule of consistency in case of bail before arrest and after arrest, the learned counsel has placed reliance in the case of Muhammad Fazal alias Bodi vs. The State 1979 SCMR page 9 and Abdul Salam vs. The State 1980 SCMR 142. On merits, the learned counsel has further argued that since the applicants have no claim whatsoever over the land for which the FIR has been registered nor they have encroached upon such land, the entire proceedings under the circumstances are liable to be quashed. In support of his contentions, learned counsel has placed reliance on the following judgments:
1. Muhammad Daud and another Vs. The State and another 2008 SCMR 173
2. Fida Hussain Vs. The State and others PLD 2002 SC 16
3. Abdul Salam Vs. The State 1980 SCMR 142.
4. Abdul Aziz Khan Niazi Vs. The State through Chairman NAB, Islamabad PLD 2003 SC 668
5. Anwar Saifullah Khan Vs. The State and 3 others 2001 SCMR 1040.
6. Muhammad Ismail Vs. Muhammad Rafique and another PLD 1989 SC 585.
7. Ch. Tanveer Khan Vs. Chairman, National Accountability Bureau and others PLD 2002 SC 572.
8. Gul Zaman Vs. The State 1999 SCMR 1271
9. Noor Muhammad Vs. The State 2008 SCMR 1556
4. The complainant/Mukhtiarkar, present in Court has placed on record the interim challan in respect of FIR No.18/2011. He has also placed on record, letter bearing No.ADO/REV/Malir/Zone-IV/1383/2010 dated 21.09.2010 issued by ADO (Revenue)-IV, Malir Zone, CDG, Karachi, wherein it has been shown that applicant Bashir Ahmed has been granted land in Naclass 47 and 79. He further stated that the instant FIR has been registered in respect of Dhora (Nalla), which according to him was being encroached by the present applicants, whereas the applicants have no concern with such land. He further informed that though there is no concrete construction, however on some land, boundary walls are found raised. He has sought permission to remove such encroachment from the government land.
5. Conversely, the learned APG, in view of hereinabove has formally opposed the bail, however he could not explain the opposition of bail. Learned APG has submitted that the matter be proceeded in accordance with law and the proceedings may not be quashed at this stage.
6. I have heard learned counsel for the applicants as well as APG and noted the contention of the complainant/Mukhtiarkar, present in Court. On tentative assessment of the record and in view of the statement of Mukhtiarkar, I am of the view that the FIR does not contain the specific allegation about the nature of the encroachment or the identification of government land, which has allegedly been encroached upon, whereas no detail of such encroachment has been given. The applicants were admittedly not found to have occupied or encroached the government land. Mukhtiarkar has stated that at present no one is found in illegal possession of the land as stated in the FIR. No incriminating material has been recovered from the applicants, which could support the version of the prosecution or connect the applicants with the alleged crime, whereas application of provisions of Section 8 of the Sindh Public Property (Removal of Encroachment) Act, 2010 under the circumstances appears to be doubtful. Neither there is any independent witness of the alleged crime nor any independent witness has been associated.
7. In view of hereinabove, prosecution story cannot be treated free from doubt and the matter requires further inquiry, whereas minimum punishment provided under Section 8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010 is one year. In the reported case of Shehzore and another v. The State 2006 Y.L.R 3167, the learned Judge of this Court now elevated to the Apex Court while granting bail in a case registered under Section 395 PPC has held that under provisions of Section 395, P.P.C. alternate punishment i.e. imprisonment for live or imprisonment not less than four years and more than 10 years having been provided, lesser sentence should be considered by the Court in the matter of bail. It is settled principle of law that bail cannot be withheld as punishment, whereas grant of bail in bailable offences is a rule and refusal is exception. Similarly, law is not to be stretched in favour of prosecution. Reliance in this regard can be placed on the recent judgment of Hon’ble Supreme Court in the case of Abid Ali alias Ali v. The State 2011 SCMR 161. Ratio of the case laws relied upon by the learned counsel for the applicant is attracted under the circumstances.
8. In view of hereinabove, and respectfully following the dicta laid down in the above cited judgments, I am of the view that the applicants have made out a case for confirmation of ad-interim pre-arrest bail, which was granted by this Court vide order dated 24.03.2011. Accordingly, pre-arrest ad-interim bail is hereby confirmed on the same terms and conditions as contained in the order dated 24.03.2011.
9. Needless to observe that the observation made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
10. However, it is clarified that if, the applicants misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant as per law.
J U D G E
Nadeeem