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Criminal Miscellaneous No. 11‑B of 1982, decided on 4th April, 1982.

‑‑‑S. 497(5)‑‑Bail‑‑Petition for cancellation‑‑Case of fraud‑‑Evidence in case more or less documentary and opinion of expert about certain documents still awaited‑‑Accused coming forward with a counter version that amount received by them was in fact 'Charrhawa' and that they committed no fraud‑‑Such version could only be adjudged at trial by proper appreciation of evidence to be adduced by parties‑‑One of accused lady‑‑Bail, held, could not be cancelled in circumstances.

Sultan Alam for the Accused.

M. Kahlid Alvi for the State.

Date of hearing: 4th April, 1982.

Mst. Shaukat Parveen has filed this petition under section 497(5), Cr.P.C. for cancellation of bail before arrest granted to respondents Nos.1 and 2 by the learned Sessions Judge, Multan, vide his order, dated 15‑12‑1981. This petition was admitted to hearing on 11‑1‑1982 and the respondents put in appearance on 27‑2‑1982 in this Court.

2. The petitioner is the first cousin of Eizaz Mahboob, respondent No.1 Mst. Bilquees Begum, respondent No.2, is wife of respondent No.1. The petitioner allegedly had entered into an agreement to sell her land measuring 54 Kanals 15 Marlas to Mst. Bilquees Begum, respondent No.2 for Rs.1,90,000. Mst. Bilquees Begum, respondent No.2, filed a suit for specific performance of the contract against the petitioner when she went back on her promise. However, the parties compromised on 27‑8‑1981 on the condition that the petitioner would sell her land to Eizaz Mahboob, respondent No.1, for a sum of Rs.3,25,000. In pursuance of the compromise, the petitioner executed a sale‑deed in favour of Eizaz Mahboob, respondent No.1, on 29‑8‑1981 and having appeared before the Sub‑Registrar, got the sale‑deed registered and received the ostensible sale price in cash.

3. On 20‑11‑1981, the petitioner through a written complaint got a case registered at Police Station Old Kotwali, against respondents Nos. 1 and 2 and one Tufail Ahmad Khan, her step sister's husband. In her complaint she alleged that after getting a sum of Rs.3,25,000, the sale proceeds of her land, before the Sub‑Registrar she came out of Registrar's office in the company of her husband and father‑in‑law. At that time Eizaz Mahboob, respondent No.1, and her brother‑in‑law Tufail Ahmad Khan were also with them. Tufail Ahmad Khan who is a bank manager, asked her to hand him over Rs.3,25,000 for depositing the same in the bank because she had no safety arrangements for keeping the money at her house. Accordingly, the petitioner handed over that amount to Tufail Ahmad Khan but on the following day he gave her a receipt for Rs.2,00,000 only and misappropriated rest of the amount i.e. Rs.1,25,000 in conspiracy with respondents Nos. 1 and 2.

4. Learned counsel appearing on behalf of the petitioner argued that the police investigation has established that on 29‑8‑1981 an amount of Rs.2,00,000 was deposited in the account of the petitioner and on the same day, Rs.45,000 were deposited in the accounts of Mst. Feroza Sultana and Mst. Qudsia Sultana, each who are the real sisters of the respondents and another amount of Rs.25,000 was deposited in the account of Mst. Bilquees Begum, respondent No.2. Learned counsel emphasized that this circumstance that an amount of Rs.1,15,000 belonging to the petitioner had found way in three different accounts of the close relations of Eizaz Mahboob, respondent No. l proves beyond reasonable doubt that Eizaz Mahboob, respondent No.1, had conspired with Tufail Ahmad Khan, his co‑accused to misappropriate the money belonging to the petitioner and that the amount being huge, the respondents bail should be cancelled.

5. On the other hand, learned counsel for the respondents has argued that admittedly, the parties are closely related that the actual sale price was Rs.2,00,000 and the remaining amount was fictitious payment in order to frustrate the prospective pre‑emptors that the excess amount of Rs.1,25,000 was voluntarily returned by the petitioner to her cousins (the respondents) and that this matter was thrashed in the presence of the elders of the family wherein the father‑in‑law of the petitioner had admitted that the case was false. He further argued that the first petition moved by the petitioner to police authorities did not find mention of the respondents as accused.

6. Mr. Sharif Tariq, Prosecuting Inspector, who is present with record in Court has informed me that the investigation is still in progress and that certain documents which according to the petitioner were forged on her behalf have been sent to the handwriting expert for soliciting his opinion. He further submitted that actually the bargain of the land in dispute was struck for a sum of Rs.2,00,000 and the remaining amount was Charrhawa (fictitious excess price).

7. I have carefully considered the arguments advanced by the learned counsel for the parties. The evidence in the case more or less is documentary. About certain documents, opinion of the handwriting expert is still awaited, The respondents have come forward with a counter version that the sum of Rs.1,25,000 was received back from the petitioner as it was Charrhawa and that they did not deprive the petitioner of the said amount fraudulently.

8. Be that as it may, I am of the view that presently it is not possible to say with certainty as to which of the two versions is true. It can only be adjudged at the trial by proper appreciation of the evidence adduced by the parties. Respondent No.2 is a woman.

9. In these circumstances, I am not inclined to cancel the bail granted to the respondents by the learned Sessions Judge. The petition being without merit is hereby dismissed.

M.Y.H./3193/L Petition dismissed.

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