PLJ 2024 Cr.C. (Note) 57
[Sindh High Court, Karachi]
Present: Amjad Ali Sahito, J.
MUHAMMAD ASIM ANSARI--Applicant
versus
STATE etc.--Respondents
Crl. Bail Appln. No. 1699 of 2023, decided on 11.9.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Railways Act, (IX of 1890), u/S. 22--Pakistan Penal Code, (XLV of 1860), S. 34--Pre-arrest bail, grant of--The investigating officer also undertakes that he will record statement of Honorary Joint Secretary of Society in which Honorary Joint Secretary Major (R) admitted that “Land of PECHS includes small portion of railways land as descripted in license agreement.” Plot No. 245-1-E Block 6 existing in lune 25-1 consisting Block 245-1-A to 245-1-2 all measuring 1000 squan yards--Counsel for applicant also invites attention in year 1980 when a Suit S. Munirul Huda bearing Suit No. 4430/1980 [S. Munirul Huda vs. Chairman Pakistan Railways Board and other against Plot No. 245-1-D was filed which was decided in his favour from above, prima facie this is a dispute between two Departments and proper course for redressal of their grievances is a civil Court which could decide title documents of plot Learned Assistant Attorney General has also rightly pointed out that this case pertains to title document of plot, for which appropriate forum is Civil Court--Counsel for applicant also pleaded mala fide on part of complainant--At bail stage, only tentative assessment is to be made and deeper appreciation is not permissible. [Para 6] A
M/s. Saathi M. Ishaque and S.K. Lodhi, Advocates for Applicant.
Mr. Muhammad Ahmad, Assistant Attorney General, Mr. Shahid Khan, Law Officer, SSP Shoukat Ali Khatiyan, Pakistan Railways a/w I.O. of case for Respondent.
Date of hearing: 11.9.2023.
Order
Through this Bail Application, applicant/accused seeks pre-arrest bail in Crime No. 49/2023 for the offence under Sections 122 (iii) Railway Act & 34, PPC at PS Railway Cantt., after his bail plea has been declined by the learned Xth Additional Sessions Judge, Karachi South vide order dated 31.07.2023.
2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.
3. Per learned counsel for the applicant, the applicant is innocent and has falsely been implicated in this case; that in fact elder brother of the applicant namely Najeebuddin Ansari purchased a Plot Bearing No. 245-1-E measuring 1000 Square Yards at Block-6, Pakistan Employees Co-operative Housing Society Ltd. (hereinafter referred as “PECHS”) from one Mazhar-ul-Islam through sale agreement dated 10.04.2018; that certain letters are available at Page-27 onwards which confirm that the PECHS raised no objection for transfer of mutation through registered sale deed in the name of elder brother of applicant; that prior to this, a Suit filed by one S. Munir-ul-Huda Bearing Suit No. 4430/1980 (S. Munirul Huda vs. Chairman Pakistan Railways Board and other) against Plot No. 245-1-D and the Suit was decided in favour of the plaintiff. He further submits that no offence has been committed by the applicant or his elder brother. He lastly prays for confirmation of bail to the applicant.
4. On the other hand, learned counsel appearing for Pakistan Railways states that they have also recorded statements of Major (R) Naveed Ahmed Khan, Honorary Joint Secretary PECHS, Afzal Coordinator/Chief Administrative Officer and other officials of PECHS in which they have admitted that a small portion of land is a part of Pakistan Railways. Learned Assistant Attorney General submits that this matter is of civil nature, as such, only Civil Courts have jurisdiction to decide the title documents of the subject plot and criminal Court cannot decide the same.
5. Heard arguments and perused the record.
6. Admittedly, through sale agreement dated 10.04.2018 elder brother of the applicant namely Najeeb-ud-Din Ansari purchased plot Bearing No. 245-1-E measuring 1000 square yards situated at Block-6 PECHS, Karachi and after purchasing the said plot, such transfer order was mutated in his name by Honorary Joint Secretary and so also other official of PECHS. In support of his contentions learned counsel for the applicant has produced certain documents which are available from Page-31 to 37 of the file even the site-plan was also prepared by the Executive Engineer and Chief Administrative Officer PECHS. Learned counsel for the applicant has also produced sale agreement which also confirms that elder brother of the applicant has purchased the said plot from one Mazhar-ul-Islam. On last date of hearing, the investigating officer also undertakes that he will record the statement of Honorary Joint Secretary of the Society in which the Honorary Joint Secretary Major (R) Naveed Ahmed Khan admitted that “Land of PECHS includes small portion of railways land as descripted in the license agreement.” Plot No. 245-1-E Block 6 existing in lane 25-1 consisting Block 245-1-A to 245-1-Z all measuring 1000 square yards. Learned counsel for the applicant also invites attention in the year 1980 when a Suit S. Munirul Huda bearing Suit No. 4430/1980 [S. Munirul Huda vs. Chairman Pakistan Railways Board and others against Plot No. 245-1-D was filed which was decided in his favour from the above, prima facie this is a dispute between two Departments and the proper course for redressal of their grievances is a Civil Court which could decide the title documents of the plot Learned Assistant Attorney General has also rightly pointed out that this case pertains to title document of the plot, for which appropriate forum is Civil Court. Learned counsel for the applicant also pleaded mala fide on the part of complainant. At bail stage, only tentative assessment is to be made and deeper appreciation is not permissible.
7. In view of the above, learned counsel for the applicant has made out case for grant of bail in terms of sub-section (2) of Section 497, Cr.P.C. Resultantly, the instant bail application is allowed. The interim pre-arrest bail granted to the applicant/accused vide order dated 02.08.2023 is hereby confirmed on same terms and conditions. The Investigation Officer present in Court states that he wants to continue further investigation. He is directed to continue the investigation as there is no impediment to do so. The Applicant is directed to attend the trial so also join the investigation as and when required. However, it is made clear that if the applicant/accused misuses the concession of bail, learned trial Court would be at liberty to take appropriate action.
8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant/accused on merits.
(A.A.K.) Bail allowed
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