PLJ 2022 Cr.C. (Note) 20
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468, 467 & 471--Bail, dismissal of--Allegation of--Center of controversy is a piece of land--Common land according to revenue record--It was a ploy seemingly enacted by themselves and, thus, they cannot claim benefit of their treasonous conduct; as functionaries of State, revenue officials were under a heavier onus to confront plaintiff by taking Court into confidence; their silence heavily reflects upon their conduct--State being an abstract entity, manifest and exercises sovereign authority over territories and subject, through functionaries tasked with legislative, executive and judicial responsibilities; they run affairs of Republic and their acts are protected by statutory immunity, presumably being genuinely with bona fide; delegated authority is a sacred trust to be discharged justly, fairly and honestly to accomplish designated purposes under rule of law; breach of trust would result into chaos and turmoil and, thus, must be received without condonation--Similarly, argument that offences complained barring Section 467 of Code ibid, added subsequently, according to counsel without justification, do not fall within prohibitory clause of Section 497 of Code of Criminal Procedure, 1898 and, thus, petitioners’ release on bail would be inconsonance with norm being followed by Court, cannot be received with favour as by now it is well settled that in appropriate cases, concession of bail can be declined in appropriate cases, though outside ambit of prohibition--Given accusation and formidable material in support thereof with a large number of affectees, departure from rule, in circumstances would not be unconscionable--Bail dismissed. [Para 3] A
M/s. Mudassar Khalid Abbasi, Muhammad Asif Choudhry, Ansar Nawaz Mirza, G.M. Shah and Muhammad Faisal Malik, Advocates for Petitioners.
Mr. Hassan Raza Pasha, Sardar Tariq Anees, Sardar Muhammad Fida Hussain, Sardar Muhammad Abbas, Sardar Muhammad Amin, Advocates for Complainant.
Mr. Naveed Ahmad Warraich, DDPP with Ghulam Asghar Chandia, Circle Officer, ACE Rawalpindi.
Mr. Saleem Murtaza Mughal, A.A.G. with Mustansar Ali Gill, Tehsildar Bandobast Rawalpindi and Muhammad Akbar, Halqa Patwari for Respondents.
Date of hearing: 30.8.2018.
PLJ 2022 Cr.C. (Note) 20
[Lahore High Court, Rawalpindi Bench]
Present: Qazi Muhammad Amin Ahmed, J.
MUHAMMAD ILYAS and others--Petitioners
versus
STATE and others--Respondents
Crl. Misc. Nos. 921-B, 936-B, 945-B & 1144-B of 2018,
decided on 30.8.2018.
Order
Crl. Misc. Petitions Nos. 921-B/2018, 936-B/2018, 945-B/2018 and 1144-B/2018 filed by Muhammad Ilyas, Fazal Arshad Mirza, Fazal Inam Sabir and Malik Khurshid, respectively, for their release on
post arrest bail, arisen out of First Information Report No. 15 dated
7-5-2018 registered with Police Station Anti-Corruption Establishment Rawalpindi under Sections 420, 468, 467, 471 of the Pakistan Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947, bear a common thread; these are being decided through this single order.
At the center of controversy is a piece of land measuring 732-Kanal 1-Marla bearing Khasra No. 2129 in revenue estate Fazal Parri, adjacent to an affluent neighbourhood, described in the revenue record as common land, has been ostensibly donated by Fazal Inaam Sabir petitioner in favour of his brother-in-law Fazal Arshad Mirza on 27.1.2016 on a Rs. 100/- denomination stamp paper, on the basis whereof, he instituted a declaratory suit on 1-2-2016, posted before Mr. Muhammad Ismail Jasara, learned Civil Judge 1st Rawalpindi; Province of the Punjab through Addl. Collector Rawalpindi, Tehsildar Rawalpindi and Halqa Patwari were arrayed as defendants; it was adjourned to 6th of February 2016 after issuance of summons through registered A.D. On the said date, the learned Judge was on leave and the case was posted for 12-2-2016 when again he was not in attendance and, thus, it was adjourned to 15-2-2016. On the said date, the defendants were not in attendance and immediately a proclamation was ordered to be published in the Daily Din. The lis came up before the learned Judge on 23-2-2016 when he proceeded ex-parte against the defendants to record statement of the plaintiff and for arguments on 29-2-2016; the proceedings were concluded and suit decreed ex-parte on 1-3-2016. It was on the strength of this ex-parte decree that Fazal Arshad Mirza petitioner instituted execution petition before the same learned Judge on 2-4-2016 who once again proceeded swiftly and caused the land mutated on 20-6-2016. Taken aback by the transaction, the complainant reported the matter to the Anti Corruption Authorities, albeit with no meaningful response and it was finally through the intervention by a Justice of Peace that the Department commenced formal criminal proceedings, during the course whereof, Sohail Maqbool Tehsildar, Muhammad Ilyas Patwari and Malik Khurshid Patwari were found privy to the transaction, primarily architected by Fazal Inaam Sabir petitioner to benefit his brother-in-law Fazal Arshad Mirza petitioner; both of them came up with a plea that land was alienated on the basis of a valid gift; the claim was structured upon record of rights as well as periodical record, prepared by Malik Khurshid Patwari petitioner during his posting in the revenue estate; these were found fake and it is so confirmed even today by Mustansir Ali Gill, Tehsildar Bandobast Rawalpindi after perusal of record alongside Muhammad Akbar Halqa Patwari; according to them, Fazal Inaam had entitlement, in terms of possessory rights in the common land to the extent of 269 Kanal, of which, he had already sold out 185 Kanal before the impugned transaction and, thus, had no occasion to transfer a better title over 732 Kanal 1-Marla. According to the Investigating Officer, the mischief was done at the cost of Shahid Iqbal, Mirza Touqeer, Tajaml Baig, Kamran Baig, Akash Baig, Muhammad Maskeen, Mirza Zubair Iqbal, Mirza Fazal Manzoor, Zahoor Ahmad, Barkat Hussain, Muhammad Arshad, Mirza Ehtasham-ul-Haq, Zulfiqar Ahamd Mirza, Amjad Mehmood, Raja Mujahid Zafar, Masood Akhtar, Ghulam Murtaza and Zahoor Hussain co-sharers with proprietary rights in land measuring 483-Kanal. The entire transaction has been carried out with active connivance of revenue officials and on the basis of an ex-parte decree passed with acquiescent condonation of statutory rules, that too, with obscene haste.
2. Heard. Record perused.
3. Reliance upon copies of revenue record by the learned counsel to raise plea of a valid transaction is beside the mark, as these were fabricated by no other than the accused themselves, admittedly never authenticated by the officers in hierarchy; they cannot take refuge behind the Court decree as well, inasmuch as not only they abstained to appear despite being defendants but also failed to raise objections/resistance during execution proceedings commenced soon after it was passed; it was a ploy seemingly enacted by themselves and, thus, they cannot claim benefit of their treasonous conduct; as functionaries of the State, the revenue officials were under a heavier onus to confront the plaintiff by taking the Court into confidence; their silence heavily reflects upon their conduct. State being an abstract entity, manifest and exercises sovereign authority over the territories and the subject, through functionaries tasked with legislative, executive and judicial responsibilities; they run the affairs of the Republic and their acts are protected by statutory immunity, presumably being genuinely with bona fide; the delegated authority is a sacred trust to be discharged justly, fairly and honestly to accomplish the designated purposes under the rule of law; breach of trust would result into chaos and turmoil and, thus, must be received without condonation. Similarly, argument that offences complained barring Section 467 of the Code ibid, added subsequently, according to the learned counsel without justification, do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898 and, thus, petitioners’ release on bail would be inconsonance with the norm being followed by the Court, cannot be received with favour as by now it is well settled that in appropriate cases, the concession of bail can be declined in appropriate cases, though outside the ambit of prohibition. Given the accusation and formidable material in support thereof with a large number of affectees, departure from the rule, in circumstances would not be unconscionable. Crl. Misc. Nos. 921-B/2018, 936-B/ 2018, 945-B/2018 and 1144-B/2018 fail. Petitions dismissed. Needless to observe that observations made hereinabove, being issue specific and tentative, would not impact upon the fate of the case, to be determined on the strength of evidence alone.
Conduct of Mr. Muhammad Ismail Jasara, Civil Judge 1st Class Rawalpindi, manifestly contravenes procedure mandated under Section 80 of the Civil Procedure Code, 1908; reliance upon an instrument compulsorily register-able and such liable to be impounded; promptitude employed to conclude the proceedings through hurriedly published publication in an obscure Daily with functionaries of the Province available next door cannot be viewed as innocuous or innocent; it is not above suspicion, therefore, office shall transmit a copy of this order to the Registrar to institute inquiry on administrative side, as per procedure mandated by law.
(A.A.K.) Bail dismissed
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