ABID HUSSAIN vs STATE and 6 others
This petition was filed by the complainant seeking the cancellation of pre-arrest bail granted to the respondents by the Additional Sessions Judge, Sargodha, in a case involving allegations of house trespass and causing injuries. The complainant alleged that the respondents entered his house, insulted his family, and injured his wife and daughters following a dispute over a dog. The High Court examined the lower court's order and found that the Additional Sessions Judge had erroneously relied on a three-day delay in lodging the FIR, failing to account for the complainant's socio-economic status and police reluctance. Furthermore, the Court noted that the police investigation supported the applicability of Section 452 of the Pakistan Penal Code 1860, contradicting the lower court's finding. The Court also observed that the respondents had misused the concession of bail by attempting to manufacture evidence. Consequently, the Court cancelled the pre-arrest bail for three respondents but maintained it for the primary respondent due to his advanced age and fragile health.
- Can pre-arrest bail be cancelled if the accused is found to be misusing the concession by manufacturing evidence?
- Does a delay in lodging an FIR automatically entitle an accused to pre-arrest bail?
- Can an appellate court cancel pre-arrest bail if the lower court failed to correctly appreciate the applicability of the charged sections based on the police investigation?
- Section 452, Pakistan Penal Code 1860
ORDER
The petitioner/complainant had lodged FIR No, 103/05 dated 18.3.2005, at Police Station Saddar, District Sargodha, for offence under Sections 452/34 P.P.C.
2. The allegation as contained in the FIR was that Ahmad Khan son of Lala, Mulazim Hussain, Khadim Hussain and Muhammad Azim, sons of Ahmad Khan, Respondents Nos, 2 to 5 respectively, armed with Sotas while scaling over the wall had entered the house of the complainant and had caused injuries to his daughters namely Shamsa Kanwal, Farhat Batool and his wife Azra Bibi. It was also alleged that his son Naveed Iqbal had also been injured. One of the witnesses namely Mazhar son of Ahmad Khan who had been attracted to the scene on the alarm raised by the members of the complainant's family was also injured.
The motive according to the complainant was that on 15.3.2005 his daughter Farhat Batool had hit a dog of the accused party with a stick, which had angered and infuriated the accused party prompting them to raid the house of the complainant and causing injuries as stated in the FIR.
3. Respondents Nos, 2 to 5 applied for their pre-arrest bail in the Court of Sessions at Sargodha and the learned Addl. Sessions Judge vide his order dated 19.4.2005 allowed pre-arrest bail to them. It is the said order which has been challenged by the petitioner/complainant through this petition for cancellation of bail.
4. I have heard the learned counsel for the parties at considerable length and have perused the record.
5. A plain look at the order dated 19.4.2005 reveals that the learned Addl. Sessions Judge had given undue weight to the so-called delay of three days in lodging the FIR. He did not appreciate the fact that the complainant was a petty wagon driver and that generally the police are reluctant and hesitant in recording FIRs, The other consideration which heavily prevailed with the learned Court in granting bail to the respondents was that the police had come to the conclusion that no trespass had been committed and as such Section 452 P.P.C. was not applicable. A perusal of the record suggests otherwise. According to the police investigation, the respondents had trespassed into the house of the complainant and as such Section 452 P.P.C. was fully applicable. I do not want to go further into the subleties of the case lest any observation thereon prejudices either of the sides.
Suffice it to say that there is a serious allegation against the respondents that they had trespassed into the house of the complainant and had subjected the womenfolk to extreme insult and indignity. The cleared counsel for Respondents Nos, 2 to 5 has not been able to point out any malice or ill will harboured by the complainant against the accused persons named in the FIR. He has also not been able to point out any unique feature of the case entitling them to the grant of pre-arrest bail. A copy of FIR No, 245 dated 16.6.2005 registered at the instance of Ahmad Khan son of Lala, (Respondent No, 2), which has been presented by the learned counsel for the' respondents, in fact shows that the respondents had been trying to manufacture evidence in their favour and had thus been Misusing the concession of pre-arrest bail. Instead of helping the respondents this FIR goes against them.
6. I have observed that Ahmad Khan (Respondent No, 2) who is present in the Court, is an old man with a hunched figure and appears to be unwell.
7. Resultantly this petition is allowed and pre-arrest bail allowed to Respondents Nos, 3, 4 and 5 is hereby recalled. Insofar as Ahmad Khan, Respondent No, 2 is concerned, in view of his old age and fragile health I am not recalling the bail order to his extent.