KHURRAM BASHIR vs THE STATE and others

ORDER

' SHAHID HAMEED DAR, J.---Seeks bail before arrest in case F.I.R. No,663 of 2010 dated 1-8-2010 under sections 337A(i), 354, 452 P.P.C. Registered at Police Station Sadiqabad, Rawalpindi on the complaint of Khurram Kiani.

2. Precisely, the prosecution case as stated by the complainant is that a dilapidated house was situated close to his residential house where the youths of Mohallah often smoked charas; he found Talat Bhatti, Waseem and Khurram Abbas (petitioner) smoking charas in the said house at 9-00 p.m on 31-7-2010 and threw them out of the said house by insulting them; the above said three persons trespassed into his house at 9-30 p.m, raised lalkara, showered abuses upon him and insulted his wife; one of the accused namely Talat Bhatti beat the wife of the complainant due to which her shirt was torn; the accused picked up some used bottles and smashed them against the walls of the house, as a result of which the wife of the complainant received injuries as some splinters thereof hit her; on the alarm of the complainant, the neighbours reached there and persuaded the accused to leave the house of the complainant.

3. It has been found from the F.I.R. That the petitioner and his co- accused were empty handed at the time of alleged occurrence and none of them used the old bottles as a weapon of offence. It has been further found from the F.I.R. That it was Tallat Bhatti, the co-accused of the petitioner who allegedly beat the wife of the complainant during the occurrence. It has been alleged in the F.I.R. By the complainant that the accused/petitioner and his co-accused broke some empty bottles by striking them against the walls of the house and some pieces of the broken glass hit the wife of the complainant due to which she received injuries on her face and hand. It is further found that the accused left the house of the complainant after having been persuaded by the inhabitants of the same Mohallah.

4. I advantageously reproduce the definition of section 452, P.P.C. Hereunder:-- House-trespass after preparation for hurt, assault or wrongful restraint. Whoever commits house- trespass, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

5. It is manifest from the definition of section 452, P.P.C. That the essential ingredients for commission of offence under section 452, P.P.C. Is that the offender shall be deemed to have committed the offence of criminal house-tress pass if he after having made preparations would commit the said offence with a criminal intent to cause hurt to any person, assault any person, or wrongfully restrain any person etc. From the allegation contained in the F.I.R. It does not appear that the empty-handed accused/petitioner had committed any act which could attract the basic ingredients of section 452, P.P.C. He did not cause injuries to the wife of the complainant nor he tore her shirt and his case is clearly distinguishable from the case of his co-accused Talat Bhatti. The false implication of the petitioner due to malice or ulterior motives of the complainant especially in the backdrop of the earlier incident cannot be ruled out.

6. The pre-arrest bail admittedly, is an extra ordinary relief, the scope whereof is narrow still, it can be lawfully extended to a person who does not prima facie appear to have committed a non-- bailable offence or there is room for further probe into his guilt within the meaning of section 497(2) Cr.P.C. The primary object of the pre-arrest bail is to save the innocent persons from the apprehension of being arrested for a tainted purpose, carved out by the mischievous wire puller, driven by maliciousness and malignancy of intention.

7. Learned Deputy Prosecutor-General though has opposed the grant of bail to the petitioner yet has failed to raise any point to establish that the alleged offence committed by the petitioner falls within the ambit of section 452, P.P.C. The injuries as I find from the MLR of the injured lady fall within the definition of section 337A(i), P.P.C. Which is a bailable offence, punishable with two years' imprisonment.

8. For the foregoing reasons I accept this application and confirm the ad-interim pre-arrest to the petitioner vide order dated 4-11-2010 subject to furnishing fresh bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.