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Criminal Miscellaneous No. 4041‑B of 1974, decided on 8^th November 1974.

‑‑ S. 497(5)‑Bail, cancellation of‑Accused forging written statement on behalf of complainant and his co‑sharers and producing fictitious persons in Court to confess judgment in a suit filed by them‑Thumb‑--impressions of complainant and his co‑sharers sent to finger print expert not tallying with thumb‑impression on disputed written statement‑Contention that complainant having filed a civil suit and subject‑matter being same, accused were rightly granted bail‑Held, stay of criminal proceedings where a civil litigation pending decision in relation to same matter, not an invariable rule of law‑Case, held further, savours of a conspiracy to cheat, bail granted earlier cancelled.‑[Bail].

C. M. Latif Rawn for Petitioner.

Khawaja Muhammad Afzal for the State

This is an application for cancellation of bail granted to respondents 1 to 11 by Khawaja Ihsanul Haq, Sessions Judge, Sargodha. The respondent; were proceeded against for commission of offences under sections 420 and 468, P. P. C. for having forged a written statement on behalf of Ghulam Muhammad, Muhammad Khan, their mother Mst. Zadi and their sisters Sardaran, Fazlan, Bivi and Naziran, and for producing fictitious persons in Court to confess judgment in a suit which had been filed by respon dents 7 to 9 i.e. Malik Ghulam Abbas, Malik Muhammad Hayat and Syed Yaqoobullah Shah on the basis that the father of Ghulam Muhammad etc. had sold 247 kanals 7 marlas of land to them by an oral sale for a sum of Rs. 90,000. A Vakalatnama was written in the name of Ghulam Muhammad etc. and they were identified before Mr. Jahangir Ali Advocate by Muhammad Yusaf and Muhammad Amin respondents 10 and 11. None of the heirs of Sardara ever engaged a lawyer or knew of this case and the thumb impressions on the written statement which confessed judgment were obtained by the accused from spurious persons. Actually it is the allegation of the prosecution that respondents 1, 2, 3 and 5 appeared in place of the women heirs of Sardara. Syed Ehsanullah respondent No. 4 and Muhammad Afzal respondent No. 6 gave themselves out as sons of Sardara.

2. Respondents 7 to 11 applied to the High Court for bail before arrest vide Cr. Misc. No. 2397/B of 1974. Shaft‑ur‑Rehman, J. passed an order granting interim bail to the petitioners before him to enable them to approach the appropriate Court in the matter.

3. Mr. C. M. Latif Rawn, the learned counsel who appears in support of the cancellation of bail does not press the petition in respect of respondents 1 to 6. He, however, submits that respondents 7 to 9 were very much privy to the commission of the offence by misleading the civil Court, by their contrivance, into passing a decree by producing a written statement thumb‑marked and signed by spurious persons, confessing the judgment against them. It is also pointed out that the thumb marks of Ghulam Muhammad and other heirs of Sardara were obtained by the police and sent to the Finger Print Bureau for comparison with the thumb marks on the written statement. The opinion of the Finger Print Expert is that the thumb marks of the heirs of Sardara do not tally with the thumb marks on the written statement. It is urged that all the respondents had means to know the real heirs of Sardara and the allegations of the prosecution are supported by material circumstances arising out of this case. The learned counsel also submits that in view of the charges against respondents 7 to 9 and the evidence in the hands of the prosecution, it was not proper for the learned Sessions Judge to have granted bail before arrest which measure is meant for exceptional circumstances where a citizen apprehends malicious prosecution and humiliation in the public eye. It is submitted that the offence alleged to have been committed by these respondents was of a very serious nature and so far as it affects the solemn proceedings of a Court of law and also affected a substantial piece of landed property. The learned counsel also points out that there is no evidence whatsoever in the revenue records of any oral transaction having been entered between Sardara the original holder of the disputed land and respondents 7 to 9. Their case was that an oral transaction of sale was entered into between them and Sardara but no mutation was ever entered in respect of this land.

4. The learned counsel for the respondents submits that the complainant had filed a civil suit and the subject‑matter of that suit being the same land, the respondents were rightly granted bail. He further points out that Allah Bakhsh who claims to be a tenant on this land filed a suit on 6^th of November 1974, claiming tenancy in the land and also alleging that respondents 7 to 9 are the real owners of the land in dispute and that he had paid the batai relating to Rabi 1974 to them.

5. Khawaja Muhammad Afzal, the learned counsel appearing for the State, supports the contention of the learned counsel for the petitioner and urges that the bail granted to respondents 7 to 11 be cancelled.

6. I have considered the arguments advanced on both sides. It is not invariable rule of law that wherever a civil litigation is pending in relation to the same matter the criminal proceedings have to be dropped or stayed. It is a question of fact in each case whether or not the criminal proceedings have to be stopped. There is no evidence in the case to show that the heirs of Sardara had not signed the written statement on the basis of which the decree was passed. There is further evidence to show that respondents 10 and 11 wrongly identified some persons before Mr. Jahangir Ali as the heirs of Sardara. The case savours of a conspiracy to cheat. In my view the learned Sessions Judge did not exercise his discretion properly in granting bail before arrest to respondents 7 to 11. I, therefore, set aside that order and direct that respondents 7 to 11 shall surrender to their bail bonds and shall be taken into custody.

Petition allowed.

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