Mir Khan and another vs The State
This matter arises from a criminal bail application filed by the applicants seeking pre-arrest bail after it was refused by the Additional Sessions Judge, Badin. The applicants were accused of forming an unlawful assembly and causing minor injuries and insults to the complainant. The core legal question was whether the applicants were entitled to pre-arrest bail in a case involving offences not falling within the prohibitory clause, coupled with a delayed FIR and a counter version of the incident. The Sindh High Court held that the applicants were entitled to pre-arrest bail, confirming the interim bail already granted. The Court reasoned that the two-month delay in lodging the FIR, the existence of a counter version requiring trial determination, and the fact that the alleged offences did not fall within the prohibitory clause collectively established grounds for further inquiry and mala fides, aligning with settled principles regarding pre-arrest bail for non-prohibitory offences.
- Whether an accused is entitled to pre-arrest bail when the alleged offences do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does a delayed FIR combined with a counter version of the incident constitute grounds for further inquiry warranting the grant of pre-arrest bail?
- Whether pre-arrest bail should be confirmed when the accused have joined the trial and mala fides on the part of the complainant party are apparent?
- Section 498, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
Irshad Ali Shah, J:- It is alleged that the applicants with rest of the culprits after having formed an unlawful assembly and in prosecution of their common intention have caused fists kicks, lathies and back side of hatchet blows to complainant Rehmatullah and then went away by insulting him, for that the present case was registered against him.
2. The applicants on having been refused pre arrest bail by learned 2nd Additional Sessions Judge, Badin have sought for the same from this Court by way of instant application u/s 498 Cr .P.C.
3. It is contended by learned counsel for the applicants that the applicants being innocent have been involved in this case falsely by the complainant party in order to satisfy its dispute with them over plot; the FIR has been lodged with delay of about two months; there is counter version of the incident and offence alleged against the applicants is not falling within the prohibitory clause. By contending so, he sought for pre-arrest bail for the applicant on point of further enquiry and malafide.
4. Learned A.P.G. for the State has opposed to grant of pre arrest bail to the applicants by contending that they have actively participated in commission of incident.
5. I have considered the above arguments and perused the record.
6. The FIR of the incident has been lodged with delay of about two months; such delay could not be overlooked.
There is counter version of the incident, which party is aggressor and which party is aggressed upon? It requires determination at trial. The offence alleged against the applicant is not falling within the prohibitory clause. The case has finally been challenged. The applicants have joined the trial. In these circumstances, it is rightly being contended by learned counsel for the applicants that the applicants are entitled to grant of pre-arrest bail.
7. In case of Khalil Ahmed Soomro and others Vs. The State (PLD 2017 SC-730 ), the Hon'ble Apex Court has held that; "----Ss. 498 & 497---Constitution of Pakis tan, Art. 185(3)--Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i), 337- F(vi), 337- L(2) & 504---Shajjah-i-khafifah, ghayr -jaifah damiyah, ghayr -jaifah munaqqillah, other hurt, intentional insult with intent to provoke breach of peace---Pre-arrest bail, grant of---Mala fide of complainant---Offences with which accused persons were charged were punishable by way of imprisonment which did not fall within the prohibitory part of S. 497, Cr.P.C.--- When the accused persons were entitled to post arrest bail, their prayer for pre-arrest bail, if declined, would be a matter of technicality alone---Accused persons were likely to be humiliated and disgraced due to their arrest at the hands of the local police---In the present case, it appeared that net had been thrown wider and the injuries sustained by the victims except one or two, had been exaggerated---Seemingly efforts had been made to show that the offences fell within such provisions of law, which were punishable with five years' or seven years' imprisonment---All said aspects, when considered combindly , constituted mala fides on part of complainant party ---Accused persons were granted pre-arrest bail accordingly".
8. In view of above, the interim pre-arrest bail already granted to the applicants is confirmed on same terms and conditions.
9. The instant bail application is disposed of accordingly .