-S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 409, 420, 467, 468 & 471--Petitioners got transferred Government land by preparing forged and factious documents-

 PLJ 2022 Cr.C. 53

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 409, 420, 467, 468 & 471--Prevention of Corruption Act, 1947, S. 5(2)--Bail, grant of--Allegation of--Petitioners got transferred Government land by preparing forged and factious documents--Petitioners are though named in crime report yet no role whatsoever for demanding, receiving or extorting even a single penny from any corner has been brought on record--Though there was allegation of preparing and using forged documents in getting allotted state land yet no forensic report is available on record in this regard and as such, application of Section 467, PPC to facts and circumstances of case shall be taken into consideration by trial Court after recording evidence--Remaining offences with which petitioners have Section 497, Cr.P.C. The petitioners were arrested! in this case and during investigation no incriminating material could be recovered from them--Petitioners are behind bars and their physical custody is no; required to police for further investigation and] thus, no purpose would be served by keeping them behind bars for an indefinite period--It is a need of hour that public property/asset shall not be disposed of in such a cursory manner rather a policy for open auction should be promulgated in order to avoid on one hand any unfairness or discrimination at hands of Executives and on other to safeguard interest of public property.                                       [Pp. 55, 56 & 57] A, B & C

M/s. Sardar Khurram Latif Khan Khosa, Tahir Mehmood and Sh. Tanveer Ahmad, Advocates for Petitioner.

Rana Asif Saeed, Advocate for Petitioner. (Crl. Misc. No. 5759-B/21)

Malik Muhammad Tariq Nonari, Advocate for Petitioner. (Crl. Misc. No. 6650-B/21)

Mr. Ishfaq Ahmad Malik, Deputy Prosecutor General alongwith Muhammad Imran Khurshid, CO/ACE for Respondents.

Date of hearing: 20.10.2021.

 PLJ 2022 Cr.C. 53
[Lahore High Court, Multan Bench]
Present: Asjad Javaid Ghural, J.
MUZAFFAR BHUTTA--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 5754-B of 2021, decided on 20.10.2021.

Order

Through this common order, I propose to decide the titled petition filed by petitioner Muzaffar Bhutta and two connected petitions bearing Crl. Misc. No. 5759-B/2021 filed by petitioners Athar Iqbal and Ashiq Hussain and Crl. Misc. No. 6650-B/2021 filed by petitioners Shahid Mehmood, Muhammad Shafqat Bashir and Muhammad Riaz, whereby they have sought post arrest bail in terms of Section 497, Cr.P.C. in case FIR No. 01/2021 dated 01.01.2021, in respect of offences under Sections 409, 420, 467, 468, 471, PPC and Section 5(2) of the Prevention of Corruption Act, 1947 registered at Police Station, Anti-Corruption Establishment, Khanewal.

2. Precisely, the allegation against the petitioners is that they, in connivance with each other, got transferred government land measuring 495-Kanals & 06-Marlas situated at Chak No. 42-A/10-R, District Khanewal in favour of the private persons at the cheaper rate of Rs. 450/-per acre by preparing forged and fictitious documents and thereby, caused huge loss to the government exchequer. Hence, this case was registered.

3. I have heard learned counsel for the petitioners, learned Deputy Prosecutor General appearing for the State and perused the record.

4. The respective role of each petitioner is as under:--

i)        Petitioner Muzaffar Bhutta, being Naib Tehsildar, prepared report that the status of land in issue was 'Null Chahi'.

ii)       Petitioner Athar Iqbal, Colony Clerk-IV reported that the application filed for grant of proprietary rights had been filed within limitation.

iii)      Petitioner Ashiq Hussain Langah, Patwari assisted the aforementioned co-accused in submitting the status of land as 'Null Chahi'.

iv)      Petitioners Shahid Mehmood, Muhammad Shafqat Bashir and Muhammad Riaz alongwith other private persons, were alleged to have got allotted the state land at the cheaper rate of Rs. 450/-per acre.

5. The petitioners are though named in the crime report yet no role whatsoever for demanding, receiving or extorting even a single penny from any corner has been brought on record. Though there was allegation of preparing and using forged documents in getting allotted the state land yet no forensic report is available on record in this regard and as such, the application of Section 467, PPC to the facts and circumstances of the case shall be taken into consideration by the learned trial Court after recording the evidence. The remaining offences with which the petitioners have been charged, do not attract the prohibitary limb of Section 497, Cr.P.C. The petitioners were arrested in this case on 10.08.2021 and during investigation no incriminating material could be recovered from them. The petitioners are behind the bars since 10.08.2021 and their physical custody is not required to the police for further investigation and, thus, no purpose would be served by keeping them behind the bars for an indefinite period.

6. For what has been discussed above, the petitions in hand are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 100,000/-(rupees one lac) each with one surety each in the like amount to the satisfaction of learned trial Court.

7. Before parting with this order, it is observed with great concern that the allotment of the State land situated in Chak No. 42-A/1-R Tehsil Khanewal under Tube-well Sinking Scheme was made to the tenant/legal heirs of the tenants namely, Muhammad Nazir, Muhammad Siddique, Azmatullah Khan, Ghulam Mustafa and Shahid Mehmood etc. by the Additional Deputy Commissioner (Revenue) Khanewal according to their respective shares at the cheapest rate of Rs. 450/-per acre vide order dated 06.06.2018 by simply stating that according to policy of Board of Revenue but no such policy was referred in the said order. It is a need of hour that public property/ asset shall not be disposed of in such a cursory manner rather a policy for open auction should be promulgated in order to avoid on the one hand any unfairness or discrimination at the hands of the Executives and on the other to safeguard the interest of the public property. In this regard. I am guided with the esteemed judgment of the Apex Court of Pakistan reported as Member Board of Revenue/Chief Settlement Commissioner, Punjab Lahore vs. Abdul Majeed and another (PLD 2015 Supreme Court 166) wherein it has been laid down as under:

"It goes without saying that the available evacuee property with the Notified Officer is a public property entrusted to the Government for distribution to rightly claimants under the law. Notwithstanding the failure of the appellant authorities to complete the auction sales in favour of the respondents, it is higher public law consideration that a public asset, namely available evacuee property is disposed of or allocated through unrestricted public auction under paragraph 11 of the Available Properties Scheme, 1977 in order that fairness or discrimination is excluded from decisions taken by the Notified Officer in relation to such property. In the facts of the present case, the respondents do not possess entitlement for the allotment of available evacuee land and its allocation/allotment to them without cover of law constitutes an undue favour amounting to unfairness and discrimination."

Although according to the learned counsel for the petitioners above allotment order has been cancelled by the Commissioner, Multan vide order dated 10.07.2020, yet the revision is still pending adjudication before the Member (Judicial-Ill), Board of Revenue, Punjab, wherein, an injunctive order has already been passed by the said forum. Without being prejudice on the merits of said case, it is

desired that the Member Board of Revenue while deciding the matter, shall ensure that if in the end, it arrived at a conclusion that any right has been created in favour of allottees through any scheme, even then he shall ensure that the price of land shall not be less than the market value. Copy of this order be sent to the Chief Secretary', Punjab and Chairman, Board of Revenue, with direction to make all out efforts to devise a new policy ensuring to make allotments/disposal of the State land through unrestricted open auction.

(A.A.K.)          Petitions allowed