MUJAHID AZIZ and another vs STATE and another
This petition for pre-arrest bail arose from F.I.R. No. 104/2010, registered under Sections 452 and 506 of the Pakistan Penal Code 1860, involving allegations of house trespass and criminal intimidation. The petitioners, who are the brothers-in-law of the complainant, sought pre-arrest bail after the Additional Sessions Judge refused their initial application. The core legal question was whether the petitioners were entitled to pre-arrest bail given the circumstances of the case and the nature of the allegations. The Court held that the petitioners were entitled to the concession of pre-arrest bail. The Court reasoned that Section 452 of the Pakistan Penal Code 1860 was not applicable because the parties resided in the same house, and the significant delay of two and a half months in lodging the F.I.R. raised a presumption of false implication. Furthermore, the Court determined that the petitioners were not required for further investigation or recovery, and the case against them required further inquiry, indicating potential mala fide on the part of the complainant.
- Is Section 452 of the Pakistan Penal Code 1860 attracted when the complainant and the accused reside in the same house?
- Does a significant delay in lodging an F.I.R. raise a presumption of false implication?
- When does a criminal case against an accused become a matter of further inquiry justifying the grant of pre-arrest bail?
- Section 452, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 406, Pakistan Penal Code 1860
ORDER
Through this petition, petitioner seeks pre-arrest bail in case F.I.R. No, 104/2010 dated 26.02.2010 registered at Police Station Saddar, Tehsil and District Dera, Ghazi Khan, under Sections 452, 506 PPC at the instance of Sadia Noreen daughter of Muhammad Bakhsh, Complainant/Respondent No, 2.
2. Briefly allegations against the petitioners are that complainant was married to Mr. Abid Hussain son of Ghulam Fareed on 26.06.1998, who died on 26.09.2008 and three daughters were born. On 11.12.2009 Arshad armed with pistol; Mujahid son of Ghulam Fareed armed with pistol, who are real brothers of my deceased husband entered into my house and beaten me. On hue and cry. My mother Mst. Razia and Khalid Dad, Fair Ahmad neighbours came there accused beaten the PWs and illegally possessed my house and my articles lying in my house diner set etc. and dowry articles of my sister are in possession of the accused and accused given me threats of dire consequences. Hence, this FIR.
3. Petitioners applied for ad-interim pre-arrest bail before the learned Additional Sessions Judge, Dera Ghazi Khan, who vide order dated 17.03.2010 refused to grant pre-arrest bail to the petitioner.
4. Learned counsel for the petitioners submits that petitioners are closely related; Section 406 PPC was deleted and Section 452 PPC is not attracted as the complainant and petitioner who is the brother of the husband (Devar) closely related where the occurrence took place all the parties are residing in same house so Section 452 PPC is not attracted; there is delay of near bout 2 " months in lodging of FIR which gave rise to presumption of false implication; no useful purpose would be served while sending the petitioners behind the bars for few days; case has been filed on account of ulterior motive and mala fide on the part of complainant in connivance with the local police: case against the petitioners requires further probe into their guilt, and hence, becomes a matter of further inquiry, therefore, the petitioners are entitled to the concession of pre-arrest bail.
5. Learned Law Officer' alongwith learned counsel for the complainant has opposed the grant of pre-arrest bail on the ground that consideration for grant of pre-arrest and post-arrest bail are entirely different; petitioners could not establish any mala fide on the part of the complainant or on the part of the police to connect the present petitioners with the commission of offence; the petitioners are nominated in the FIR with specific role; petitioners alongwith others gathered at the place of occurrence with common intention of committing crime, therefore, petitioners are not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. Petitioners are closely related with each other. Section 406 PPC was deleted and Section 452 PPC is not attracted as the complainant and petitioner who is the brother of the husband (Devar) are closely related. Where the occurrence took place all the parties are residing in same house so Section 452 PPC is not attracted. There is delay of nearabout 2-1/2 months in lodging of FIR which give rise to presumption of false implication, No useful purpose would be served while sending the petitioners behind the bars for few days. Petitioners are no more required for any recovery or investigation. Case has been filed on account of ulterior motive and mala fide on the part of complainant in connivance with the local police. Case against the petitioners requires further probe into their guilt hence, becomes a matter of further inquiry.
8. Resultantly, this petition is accepted and the ad-interim pre-arrest bail already granted to petitioners vide order dated 22.03.2010 is hereby confirmed. However. observations made above are of tentative in nature, will not prejudice the case of either side during the trial.