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Criminal Miscellaneous No. 2197‑B of 1984, decided on 29th August, 1984.

---S.498‑‑Penal Code (XLV of 1860), Ss.440, 448, 506 & 149‑‑Bail before arrest grant of‑‑Title and possession of complainant in respect of disputed land in dispute and civil Court already passed order in favour of accused, maintaining their possession‑‑Bail ad interim confirmed, in circumstances.

Muhammad Rashid Chughtai for Petitioners.

Sh. Ehsan Ahmad for the State.

Date of hearing: 15th August, 1984.

The petitioners whose prayer for pre‑arrest bail was disallowed by the learned Additional Sessions Judge, Bhakkar vide order, dated 8‑8‑1984 in case F.I.R. No. 190, dated 27‑7‑1984 registered under section 440/448/506/149, P.P.C. at the instance of Mukhtar Ahmad, have filed the present petition for pre‑arrest bail in this Court. The allegations against the petitioners as revealed in the F. I. R. are that they alongwith Shahid son of Tufail, Tufail son of Mehr Din, Khushi Muhammad son of Beer Din, Khalid and Arshad sons of Khushi Muhammad, Muhammad Hanif and Baboo sons of Muhammad Rafiq, Muhammad Aslam and Ashraf sons of Noor Muhammad committed trespass on the land measuring three Marlas which the complainant and one Maqbool Ahmad had purchased from Mumtaz Ahmad, Advocate, for Rs.21,000 in the year 1980. The accused pulled down the Chhapper which the complainant had constructed over the aforesaid piece of land and thereafter illegally constructed a Kotha in its place.

2. The petitioners' contention is that the piece of land referred in the F.I.R. is a part of State land and that the same has been occupied by them with the permission of the local authorities. According to the petitioners, they have filed a civil suit in respect of the aforementioned land and have obtained an injunction order from the Court restraining the complainant from interfering with their possession.

3. The petitioners were admitted to interim pre‑arrest bail on 12‑8‑1984 and notice was issued to the State.

4. Learned counsel for the State who has appeared to oppose the petitioners' prayer for pre‑arrest bail has shown ignorance about the order of the civil Court whereby Wali Muhammad petitioner and Shahid Mahmood who had instituted a suit for permanent injunction against Mumtaz Ahmad complainant and one Maqbool Ahmad in respect of the disputed land were allowed interim relief to the effect that their possession over the disputed land to be maintained till 15‑9‑1984. The petitioners have placed a copy of the aforementioned order on the file. The petitioners' contention that the disputed land could not be sold by Malik Mumtaz Ahmad, Advocate, as it was a part of the State land, is sought to be supported by the fact that no sale‑deed in respect of the disputed land was registered although the agreement to sell the land containing stipulation that the sale‑deed would be registered by 10‑3‑1981 was executed on 24‑1‑1981.

5. The co‑accused of the petitioners have already been admitted to bail by the learned trial Magistrate and a copy of the order, dated 12‑8‑1984 passed in that behalf has also been filed by the petitioners. The Investigating Officer who has appeared in Court alongwith the record of the case has disclosed that the parties have been directed to I produce copies of the revenue record relied upon by them in support of their respective contentions. He has further disclosed that the Patwari's statement would also be recorded to ascertain the true nature of the land in dispute.

6. From all that what has been stated above, it is evident that both the title and possession of the complainant in respect of the disputed land is in dispute. It is difficult to say at this stale whether the petitioners and their co‑accused have illegally occupied the piece of land in question especially when the civil Court has passed an order in their favour maintaining their possession. Under the circumstances, the petitioners have made out a case for pre‑arrest bail. As the petitioners have already been admitted to interim pre‑arrest bail, the same is hereby confirmed.

S.G.D. Bail confirmed.

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