ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln.No.S-318  of 2012. 

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection as Flag ‘A’.

2. For Hearing.

21.01.2013.

Mr. Ali Nawaz Ghanghro, advocate for applicant along with applicant.

                   Mr. Abdul Rasheed Soomro, State Counsel.

                                      -.-.-.-.-.-.-

                   This is an application for bail before arrest moved under section 498, 498-A, Cr.P.C for offence under section  161, 467, 468, 477, 34, PPC R/w section 5(2) Act-II of 1947 registered as Crime No.03 of 2012 of Police Station, ACE, Larkana.

                   Brief facts leading to the lodging of this FIR are as under :

“This case is registered in the result of enquiry into complaint No.37/2009 of ACE Larkana. After approval of competent authority viz: ACC-I Sindh and as per orders of Deputy Director, ACE Larkana against accused Abdul Haq Chawaro, the then Mukhtiarkar, Dokri and others. Briefly the allegations are that complainant Din Muhammad Bughio has alleged that his Agricultural land S.No.351 area 4-34 Acres deh Khacharpur, Tapa Veehar, Taluka Dokri illegally changed by accused Bashir Ahmed Buto/Bughio and others in collusion with accused Tapedar Mehmood Soomro and others. During enquiry it is proved that the land S.No.351 area 4-34 acres deh Khacharpur Taluka Dokri was granted to complainant Din Muhammad Bughio by Mukhtiarkar Settlement Larkana in the year 1993 and such entry is available in Revenue record. In the year 2007, applicant obtained pass book of the above Agricultural land, but accused Bashir Ahmed Buto/Bughio in collusion with accused Tapedar Mehmood Soomro and accused Mukhytiarkar Abdul Haq Chawaro kept bogus entry in favour of Bashir Ahmed Bughio/Butro vide No.365 dated 17.2.2003 of deh Kharcharpur, Taluka Dokri by way of fraud and forgery and shown the above land purchased by accused Bashir Ahmed Butro/Bughio from accused Ghulam Hyder Bughio. Later on accused Tapedar Mehmood Soomro illegally and un-authorisely issued sale fard certificate as the above land in favour of accused Bashir Ahmed Bughio and same was attested by accused Mukhtiarkar Abdul Haq Chawaro  without verifying Revenue record. On the basis of bogus sale fard certificate accused Bashir Ahmed Butro/Bughio sold out the applicant’s land to accused Allah Dino s/o Mohammad Safar Bughio and kept bogus entry in Revenue Record in favour of accused Allah Dino Bughio after accepting huge bribe amount from him. Hence accused namely Abdul Haq Chawaro, the then Mukhtiarkar Dokri, accused Tapedar Mehmood Soomro and private persons Bashir Ahmed s/o Muhammad Jam Butro/Bughio, Ghulam Hyder s/o Muhammad Khan Bughio and Allahdion s/o Muhammad Saffar Bughio have committed the above punishable offence of the above sections of law. Hence this case is registered against above named accused on behalf of State.”

It is contended by the learned counsel for the applicant that the case involved issuance of sale certificate and the attestation of the same by the accused Tapedar Mehmood Soomro and Mukhtiarkar Abdul Haq Chawaro respectively. Learned counsel submits that the FIR pertains to the year 2003, which was registered in the year 2012; it is after the delay of nine years. Learned counsel in support of his contentions submits that it is civil dispute between the two private parties and as such FIR could not be registered and the  applicant cannot be booked under section 5(2) Act-II of 1947. Learned counsel has relied upon the case of Muhammad Musa Versus The State 2005 S.L.J 230 as well as the case of Azmat versus The State SBLR 2006 Sindh 1511, in terms whereof the law does not authorize Anticorruption Police to entertain any application of any private person in respect of private land. Similarly in another cited case of Ch. Bashir versus The State PLD 1969 Peshawar 49, it was observed that the offence since under sections 406, 408, 409, 420 & 468, PPC, although non bailable , not punishable with death or transportation for life. Ample discretion with Court to allow bail in such case irrespective of fact whether reasonable ground exist to believe that accused had committed offence. Similarly in another case law cited at bar in the case of Rashid Mirza versus Regional Director and 2 others 2009 MLD 25, it was observed as under :

“7.   In this view of the matter, I feel no difficulty in concluding that no offence, whatsoever, was/is made out against the petitioner. There was a pure civil dispute, if any, between the parties. In case, the respondent-complainant was not satisfied with the appealable order of the Revenue Officer, he should have filed an appeal before the Distt. Collector, Anticorruption Establishment was/is not the competent forum for resolution of such like disputes. In the circumstances, this is a fit case for exercise of constitutional jurisdiction and inherent powers. By allowing the criminal investigating agency to investigate the case would amount to abuse of process of law. I, therefore, quash F.I.R No.25 of 2008 registered with Police Station Anti-corruption Establishment, Faisalabad, however, with the clarification that observations made in the preceding paragraphs shall not adversely affect the case and the cause of the respondent-complainant As and when laid before the Distt. Collector or the Civil Court.”

                        Learned State Counsel submits that the offence was registered after the scrutiny was made in the year 2009. He further submitted that before issuance of sale certificate and its attestation, the applicant should have enquired about the genuineness of the entry of 2003.

                        I have heard counsels and perused the record. It appears that the entry allegedly referred pertains to the year 2003, whereas the FIR was lodged in the year 2012, thus there is inordinate delay of nine years. All that has been pointed out is that the sale certificate which was made on the basis of entry prior to the posting at relevant office. It is yet to be determined as to whether such sale certificate is bogus and as to whether such entry made in the year 2003 was on account of fraudulent act of the applicant. It is also yet to be determined as to whether this forged entry was inserted in the record of rights during his tenure or prior to him. The Hon’ble single Judge of this Court in the case of Mushtaque Ahmed Solangi versus State (SBLR 2010 Sindh 43) observed as under :

7.    No doubt, fraudulent entry is dated 1981 but it does not mean that the same was also kept in the year 1981. A fraudulent back dated entry can be kept subsequently having a date of 1981.; Therefore, the contention that there is an inordinate delay of 27 years in registering FIR is of no legal consequence.

8.      In so far as the case of Mushtaq Ahmed Solangi is concerned, who was posted as Mukhtiarkar Malir from April, 2005 to October 2005, no doubt he issued sale certificate in favour of the co-accused Muhammad Boota but this he did on the basis of entry No.1650 dated 17.11.1981. Whether this forged entry was inserted on the revenue record during his tenure or prio0r to his tenure needs to be inquired into. Therefore a case for further inquiry is made out by Mushtaq Ahmed Solangi and at this stage of the case, he is entitled to be released on bail.”

            The  fact of FIR needs to be probed. Thus the applicant has made out a case for further enquiry. Accordingly, the bail before arrest which was granted to applicant vide order dated 06.7.2012 is confirmed on the same terms and conditions.

       Judge