ABDULLAH and otherss vs THE STATE

ORDER

1. ' NADEEM AZHAR SIDDIQI, J.---The applicants have prayed for pre-arrest bail in Crime .No,262 of 2007, Police Station Tando Adam, registered under sections 337-A(ii), 337-F(v), 337-L(vi), 504, 34, P.P.C.

2. ' Briefly stated the facts of the prosecution case as disclosed by the complainant Mukhtiar Ahmed in F.I.R. Are that on 23-11-2007 he along with his brothers Muhammad Hashim and Sultan and one Abdul Ghafoor were standing on their agricultural land when at about 1530 hours the applicants/accused namely Abdullah and Abul Hassan armed. With hatchets and Mitho armed with Lathi came there and abused them. Applicants/accused Abdullah and Abul Hassan caused backside of hatchets blows on the head and other parts of the body of Muhammad Hashim and applicants/accused Mitho caused Lathi blows on. The left hand of Muhammad Hashim who after receiving the injuries fell down. On their cries the accused persons ran away from the place of incident.

3. ' Mr. Basharat Ahmed Jatt, learned counsel for the applicants/accused argued that admittedly there is enmity between the parties over a peace of agricultural land. He then contended that there is unexplained delay in registration of the F.I.R. He then submits that there is contradiction in the statement of the prosecution witnesses and the Medical Report. He then submits that applicants are respectable persons and police wants to arrest then with mala fide intention to cause humiliation. The learned counsel relied upon the reported case of Gul Muhammad v. The State 2001 PCr.LJ 1534.

4. ' The learned State Counsel as well as the learned counsel for the complainant has opposed the grant of bail. Their contention is that the injuries have been caused on the vital parts of the body and the offences with which the applicants are charged are not bailable. The learned counsel has relied upon the following reported cases:--

(1) Ashir Wasim Babar v. The State 2006 SCM R 407.

(2) Masood Ahmed alias Muhammad Masood v. The State 2006 SCM R 933.

(3) Aftab v. The State 2004 PCr.LJ 722.

5. ' The bail application filed by the applicants was rejected by the learned Sessions Judge on the ground that there is no mala fide on the part of the police and that the offences of causing injuries are punishable for 5 years and 7 years.

6. ' The applicants in the bail application filed before the Sessions Judge has pleaded as under:-- "(6) That, applicants apprehend of their arrest, humiliation, torture, disgrace publicly as police has been mixed up with the complainant party With mala fide intention and ulterior motive.

(7) That, applicants are victim of enmity admittedly in the contents of F.I.R., are involved in present case under mala fide intention and ulterior motive in order to disgrace, humiliate and torture the applicants."

7. ' The maximum punishment for the offence alleged against the applicants is seven years. The offence is not falling within the prohibitory clause of section 497, Cr.P.C. In the reported case of Tariq Bashir v. State PLD 1995 SC 34 the Honourable Supreme Court while considering an application for rejection of bail has held as under:-- ' " It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C., divided non-bailable offences into two categories i.e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example----

(a) where there is likelihood of abscondence of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

8. ' The present case is not covered by the above exceptions laid down by the Honourable Supreme Court of Pakistan. The pre-arrest bail can be granted where the arrest of the accused is imminent with ulterior motive, mala fide or due to false implication of the applicant on the face of record.

9. ' The fact that the offence is not falling within the prohibitory clause of section 497, Cr.P.C., there is admitted enmity and unexplained delay of lodging C the F.I.R. And that the applicants apprehend that police wants to arrest them to humiliate and disgrace them a prima facie case for grant of pre-arrest bail is made out.

10. ' In view of above the interim pre-arrest bail granted on 17-3-2008 is confirmed on same terms.