JEHANDAD vs Malik ALTAF HUSSAIN and 3 others

' NASIM HASAN SHAH, C.J.---The relevant facts which form background are that Jehandad the petitioner herein lodged a F.I.R. On 23-7-1993 that he left his house at 7.00 a.m. In connection with his usual avocation of selling milk. The petitioner it may be added is milk seller and leaves his house for this purpose every morning and returns home in the evening. On his return that evening his wife Mst. Tasleem Akhtar informed him that she alongwith her daughter Mst. Parveen Akhtar and son Arshad Mahmood were in the house when Safdar Hussain and Malik Altaf sons of Malik Sher Baz and Asad Ali son of Mawaz Khan the three respondents herein forcibly trespassed into the complainant's house and outraged the modesty of his wife and daughter besides assaulting them and also gave beating to his son namely Arshad Mahmood. On the hue and cry raised by complainant's children Javid and Hukamdad who live in the vicinity came to the house and rescued them. The motive for the occurrence was that a few days prior to this incident there was a quarrel between the women-folk of both the parties, on taking out water from the well. The police even though it recorded the F.I.R. Of the complainant under section 452/354/34, P.P.C. At 6.15 in the evening did not take any speedy action in the matter and in the meantime the respondents moved a petition for bail before arrest before the Additional Sessions Judge, Rawalpindi. The learned Additional Sessions Judge however by his order dated 5-9-1993 dismissed the petition and vacated the order of interim bail which was granted to the respondents earlier. The respondents thereupon moved the High Court bail before arrest which was allowed vide a impugned order of the learned Single Judge of the said learned Court dated 27-9-1993. Hence this petition for leave to appeal.

2. Notice had earlier been issued to the respondents as well as to the State. The respondents are present in person alongwith their learned counsel. Raja Abdul Ghafoor, Advocate is present on behalf of the State. Arguments of the learned counsel for the complainant, the accused/respondents and the State have been heard.

3. We are clearly of the view that as allegation of criminal house trespass and outrage of the modesty of the women-folk was involved this was not at all a fit case for grant of bail before arrest.

There was no material on the record to show that the F.I.R. Against the respondents was based on ulterior motives or, the machinery of the criminal law had been invoked to disgrace or humiliate the accused for mala fide reason. We, therefore, consider that the judgment of the High Court is liable to be set aside. As a result the impugned order of the High Court dated 27-9-1993 is set aside and the order of the Additional Sessions Judge dated 5-9-1993 dismissing the application of the respondents for grant of bail before arrest is restored.

Pre-arrest bail cancelled.