MUHAMMAD HUSSAIN alias MALANG etc. vs STATE
This matter involves a petition for pre-arrest bail filed by Muhammad Hussain alias Malang and others in connection with Case FIR No. 309 registered under Sections 452, 337-L(ii), 337-A(ii), 337-F(i), 337-A(i), 148, and 149 of the Pakistan Penal Code 1860 at Police Station Saddar Pakpattan Shard. The core legal question is whether the petitioners are entitled to pre-arrest bail when both opposing parties sustained injuries in a cross-fight and the question of who was the aggressor remains to be determined at trial. The Lahore High Court held that where a free fight occurs and both sides receive injuries amidst established factional enmity, malafide on the part of the complainant is established for the purpose of bail, and only a tentative assessment is required at this stage. The court confirmed the ad-interim pre-arrest bail granted to the petitioners, laying down the principle that in cases of cross-versions involving mutual injuries and antecedent enmity, the determination of the aggressor is reserved for trial and warrants the confirmation of pre-arrest bail upon furnishing appropriate surety bonds.
- Whether pre-arrest bail can be granted when both parties have sustained injuries in a free fight?
- Is the question of who constitutes the aggressor party in a cross-fight determined at the bail stage or during trial?
- Does the existence of prior enmity and mutual injuries establish malafide for the purpose of pre-arrest bail?
- Section 452, Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
Muhammad Hussain alias Malang, Ahmed Yar, Muttal, Fateh Sher, Alam Sher, Nawab, Sadiq, Hussain and Khadim alias Fazil petitioners seek pre-arrest bail in Case FIR No, 309 dated 7.5.2008, registered under Sections 452/337-L(ii)/337-A(ii)/337-F(i)/337-A(i)/148/149 PPC, at Police Station Saddar Pakpattan Shard.
2. Precise allegations against the petitioners, as per narration of the FIR, are that all of, them while armed with different weapons launched attack on the complainant party and injured them.
3. Learned counsel for the petitioners submits that a false case stands registered against the petitioners. In fact no occurrence ever took place. There is two days' un-explained delay in lodging of the FIR. She further submits that injuries were caused to both the parties as it was a free fight. In fact, complainant party was the real aggressor as petitioners also suffered injuries. Section 452 PPC is not made out as per the police findings and in this context she has referred to the investigation report submitted by the S.P. (Investigation) wherein he had deleted Section 452 PPC. She lastly submits that both the parties received injuries during the occurrence which will be seen at the time of trial that who was the aggressor.
4. Learned counsel for the complainant has vehemently opposed this bail application and submits that the petitioners are nominated in the FIR with specific roles. Ocular account is fully corroborated by the medical evidence. There is no malafide on the part of the complainant to false implicate the petitioners. All the petitioners have been held guilty in police investigation. He further submits that all the petitioners are required by the police for the purposes of investigation and recovery of the crime weapons is yet to be effected from them.
5. Learned DPG has also opposed the bail application and submits that the petitioners are nominated in the FIR with specific roles. He has also referred to the statements of Akbar, Bashir and Jamal who fully corroborated the version of the FIR and fully implicated the petitioners with the commission of the offence. He further submits that the petitioners do not deserve concession of pre-arrest bail at this stage.
6. I have heard all the learned counsel and have also perused the record. Petitioners are no doubt nominated in the FIR with specific roles but it is revealed from the medical evidence that both the parties suffered injuries which means that a free fight took place between the parties. Learned counsel for the petitioners has also submitted MLRs which show that two persons from the petitioners' side had also suffered injuries. With this situation in hand this Court has to take in to account the verdict of the Hon'ble Supreme Court in various judgments wherein it has been time and again held that when there is a cross light and both the parties suffered injuries it is to be seen at the time of trial as to which one was the aggressor party. At bail stage only tentative assessment is to be made. For instance one can refer the case of Sardar Munir Ahmed Dogar "v. The State (PLD 2004 Supreme Court 822). Learned DPG as well as the learned counsel for the complainant have not been able to prove the fact as to whether there was any premeditation and they have also not been able to establish that in what circumstances this fight took place. It certainly appears that there is some enmity between the parties which had ultimately led to this cross fight. Malafides on the part of the complainant stand established as both the parties belong to different factions and there exists enmity between them.
7. For what has been discussed above, I confirm ad-interim pre-arrest bail already granted to the petitioners subject to their furnishing fresh bail bonds in the sum of Rs, 50,000/- each with two surties in the like amount each to the satisfaction of the trial Court.