ASHIQUE HUSSAIN vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Ashique Hussain, in a criminal case registered under sections 337-F(i), 504, and 506/2 of the Pakistan Penal Code 1860. The core legal question was whether the applicant was entitled to the concession of bail given the nature of the allegations and the statutory framework governing bail. The Sindh High Court held that the applicant was entitled to bail. The Court observed that the incident allegedly occurred in a populated area without any independent witnesses, the complainant failed to produce a medical certificate, and the alleged use of pistol butt blows rather than gunfire cast doubt on the prosecution's version. Crucially, the Court determined that the offenses charged did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. Relying on the principle established in Tariq Bashir v. The State (PLD 1995 Supreme Court 34), the Court affirmed that where an offense does not fall within the prohibitory clause, the grant of bail is the rule and refusal is the exception.
- Does the offense under section 337-F(i) of the Pakistan Penal Code 1860 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Is the absence of independent witnesses in a populated area a relevant factor for the grant of bail?
- Should bail be granted when the alleged offense does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Section 337-F(i), Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 506/2, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' MAQBOOL AHMED AWAN, J.-- The applicant seeks bail in case/Crime No,71 of 2008 under sections 337-F(i), 504, 506/2, P.P.C. Registered at Police Station Sanghar.
2. ' As per F.I.R, the only allegation against the applicant/accused is that he caused butt blows of the pistol on the person of complainant who is witness in the case against accused persons.
3. ' The bail application on behalf of applicant/accused was filed before the learned trial Court and thereafter, the same was repeated in the Court of learned Sessions Judge and both the bail applications were dismissed. Hence the applicant approached this Court for grant of bail.
4. ' The learned counsel appearing on behalf of the applicant/accused has argued that case is false and complainant had lodged this false case with ulterior motive and mala fide intention to see the applicant behind the bars. He has further argued that no independent person has been cited as a witness by the complainant whereas the incident had taken place in a thickly populated area. He has also argued that story advanced by the complainant is appearing to be unnatural, unbelievable and requires serious consideration at the time of trial. He has lastly argued that punishment of the offence with which the applicant/ accused is charged does not fall within the prohibitory clause of section 497, Cr.P.C. He has relied upon the judgment of Tariq Bashir v. The State reported in PLD 1995 Supreme Court 34 and requests that applicant is no more required for investigation and he is in custody since 8-8-2008 and the case has been challened.
5. ' Learned Counsel appearing on behalf of the State has vehemently opposed the grant of bail on the ground that name of the applicant is appearing in the F.I.R. And that applicant had extended threats of murder, therefore, he is not entitled for concession of bail.
6. ' I have given consideration to the arguments advanced by learned counsel appearing for applicant so also for state and perused the material available on record.
7. The incident is said to have taken place in a thickly-populated area i.e, the petrol pump but no independent witness has been cited here to corroborate the version of the complainant. The complainant is witness against the accused and if there was any intention of committing murder on the part of accused, he should have fired upon the complainant except of chosen to cause butt blows to the complainant. From the perusal of F.I.R., it appears that complainant has not appeared before the Medical Officer for medical examination and no such certificate is available on the record. The enmity existed between the parties and in view of the fact that punishment is not falling within the prohibitory clause of section 497, Cr.P.C. And keeping in view the dictum laid down by the apex Court in the case of Tarique Bashir v. The State reported in PLD 1995 Supreme Court 34, I am of the considered view that applicant has made out a case for grant of bail. Resultantly, the applicant is granted bail on furnishing surety in the sum of Rs,50,000 (Fifty thousand) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.