NAZIA BIBI vs ISHTIAQ MASIH and another
This matter comes before the Lahore High Court through a petition filed under Section 497(5) of the Code of Criminal Procedure 1898 seeking the cancellation of pre-arrest bail granted to respondent No.1 by the Additional Sessions Judge, Islamabad, in respect of an F.I.R. registered under Sections 354, 452, and 34 of the Pakistan Penal Code 1860 at Police Station Margalla, District Islamabad. The core legal question revolves around whether the pre-arrest bail granted to the accused should be cancelled given his direct nomination in the F.I.R. for house trespass and outraging the modesty of a woman. The court held that no case for the cancellation of bail has been made out, noting the presence of a twenty-seven-day delay in lodging the F.I.R., the absence of weapons to support the house trespass charge under Section 452, police findings indicating only misbehavior, and the applicability of the rule of consistency based on the co-accused being granted post-arrest bail. The key principle laid down is that pre-arrest bail will not be cancelled where the case warrants further inquiry and grounds such as delayed reporting and the rule of consistency favor the accused.
- Whether pre-arrest bail granted by a lower court can be cancelled under Section 497(5) of the Code of Criminal Procedure 1898 when the accused is nominated in the F.I.R.?
- Does a significant delay in lodging the F.I.R. constitute grounds for considering a criminal matter as a case of further inquiry?
- Is an accused entitled to pre-arrest bail on the ground of the rule of consistency when a co-accused has already been granted bail?
- Does the absence of a weapon rule out the offence of house trespass under Section 452 of the Pakistan Penal Code 1860?
- Section 497(5), Code of Criminal Procedure 1898
- Section 354, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' ASAD MUNIR, J.---Through this petition under section 497(5), Cr.P.C. Cancellation of pre-arrest bail to respondent No,1 is sought. The pre-arrest bail was granted to respondent No,1 by the Additional Sessions Judge, Islamabad, vide order dated 26-9-2009 in case F.I.R. No,411 dated 30-7-2009 for offence under sections 354/452/34, P.P.C, registered at Police Station Margalla, District Islamabad.
2. According to the F.I.R, respondent No,1 along with co-accused on 3-7-2009 at about 8-00 p.m.
Forcibly entered the house of the petitioner and started abusing her as they were drunk and they also acted in a manner that outraged the modesty of the petitioner.
3. According to the learned counsel, the respondent No, 1 is clearly nominated in the F.I.R, and is guilty of the offence of the criminal house trespass and insulting the modesty of a woman. As such, the order granting pre-arrest bail to the respondent No,l being against the fact should be cancelled.
4. On the other hand, counsel for the respondent has contended that it is a case of further inquiry as there was a delay of 27 days in lodging the F.I.R. Learned counsel further contends that the offence of house trespass is not made out as the respondent No,l was not armed with any weapon which rules out commission of offence under section 452, P.P.C. Besides, the police investigation, so far only finds that the respondent No,l has only misbehaved with the complainant. It is also on record that the respondent's co-accused namely Wilson Bhatti has been allowed post-arrest bail by the Illaqa Judicial Magistrate which entitles the respondent No,l to have the concession of bail on account of the rule of consistency.
5. I agree with the contentions of the learned counsel for the respondent No,l and find that no case for cancellation of bail has been made out.