MURTAZA vs THE STATE
This matter concerns an application for pre-arrest bail filed by the applicant, Murtaza, who was implicated in a criminal case registered under sections 337-A(i) and (ii) of the Pakistan Penal Code 1860, following an alleged altercation involving physical assault. The core legal question was whether the applicant was entitled to the grant of pre-arrest bail, considering the nature of the alleged offence and the applicant's contentions regarding mala fide intent and false implication. The applicant argued that the offence was punishable by up to five years imprisonment, thereby falling outside the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Court, after reviewing the record and noting that the State did not oppose the application, held that the applicant had successfully made out a case for the confirmation of bail. Consequently, the Court confirmed the pre-arrest bail, affirming the principle that where an offence does not fall within the prohibitory clause of the relevant bail statute, the grant of bail is generally appropriate, especially when the prosecution does not contest the legal position.
- Does an offence punishable by up to five years imprisonment fall outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can pre-arrest bail be confirmed when the State does not oppose the application?
- Is an allegation of mala fide intent by the police and the complainant a relevant factor in the grant of pre-arrest bail?
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 154, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' By an order dated 15-3-2002,-learned counsel for the applicant sought bail in anticipation of his arrest in a case bearing Crime F.I.R. No.94 of 2001, Police Station New Foujdari Shikarpur for an offence under section 337-A(i) and (ii), Q.D.O. 34/504, P.P.C., which is now fixed for confirmation otherwise.
2. The prosecution story as unfolded in the F.I.R. Is that on 22-6-2001 at 12-10 Noon one Nauman Ali Soomro appeared at Police Station New Foujdari District Shikarpur and recorded entry which later on was converted into an F.I.R. On 26-6-2001 at 1-30 p.m. The details whereof are reproduced as under:-- "Complainant Nauman Ali son of Rehan Ahmed Soomro, resident of Panj Gulli, Shikarpur, came and reported the matter that some time ago Murtaza son of Zawar Muhammad Alam Buriro, was teasing him, unnecessary , on which I asked him not to do so, and restrained him from doing so. On the day of incident, I went to his hotel, near Panj Gulli Shikarpur, where Murtaza came to me on which I asked him to bring tea, Murtaza in spite of bringing tea unnecessary teasing me, but I declined, on which Murtaza abused and issued me filthy language, on which I told him to be gentleman not to issue harsh words to me, on which Gulab and Kuraro both sons of Zawar Alam Buriro, who were sitting on counter came towards me and all the accused at about 11-30 a.m.
Inflicted kicks and fist blows and outside of their hotel accused Murtaza gave bricks bat blow which landed on my head and backside, on which I raised cries, on my cries, my father Rehan Ahmed and Ranjhan son of Khabar Shaikh, resident of near Hali Koura Khan Bungalow and other present in the hotel for taking tea intervened and accused me, I then went to Police Station and lodged N.C.
Which was after receipt of Medical Certificate, incorporated in 154, Cr.P.C. As F.I.R. I am complainant action be taken."
3. I have heard learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that the case against his client is false who has been implicated in the background of enmity as disclosed in the F.I.R. It has further been contended that the applicant being respectable person of the locality apprehends an irreparable injury to his respect and reputation due to mala fide arrest on the part of police in collusion of the complainant party. It has also been argued by him that the involvement of the applicant in the false case of this nature is due to mala fide on the part of police the same is motivated with ulterior motives. '
Learned counsel further argued that according to the F.I.R. The applicant was disclosed to be armed with brick and was alleged to have caused a brick blow from a piece of brick which hit on the head of injured and the same was certified by the Medical Officer as Shajah-e-Mudiha being punishable for five years. It has further been contended that the offence being punishable upto five years goes out of prohibition contained in section 497(1), Cr.P.C. In support of above contentions, learned counsel has referred to the following case-laws:-
(1) Master Dur Muhammad and 2 others v. The State (1994 PCr.LJ 1769).
(2) Liaqat Ali Mugher and others v. The State (1999 PCr.LJ 65).
(3) Abdul Hayee Siddiqui and 2 others v. The State (1993 PCr.LJ 446).
4. Mr. Mushtaque Ahmed Kourejo, Advocate appearing on behalf of the State, concedes to the above legal position and raised no objection if the applicant is enlarged on bail in anticipation of his arrest.
5. What it has been discussed above, I am of the considered opinion that applicant Murtaza son of Zaman Muhammad Alam has been able to make out a case for confirmation which is confirmed on the same terms and conditions.
' Cr. Bail Appin. No.182 of 2002 stands disposed of in the terms stated Bail before arrested confirmed.