MUHAMMAD BASHIR vs MIRZA ALI and 5 otherss
This revision petition challenges an order of the District Court of Criminal Jurisdiction, Mirpur, which confirmed the pre-arrest bail of the accused-respondents in a case involving injuries caused during a mutual altercation. The complainant alleged that the accused party raided them with sticks, causing various injuries. The core legal question was whether the lower court erred in granting pre-arrest bail in the absence of demonstrated mala fide on the part of the police and whether the case warranted further inquiry into the guilt of the accused. The Shariat Court of Azad Jammu and Kashmir held that the impugned order was sound and dismissed the revision petition. The Court affirmed that while mala fide is a factor in pre-arrest bail, its absence does not automatically bar the concession of bail if the accused otherwise makes a case for it. The Court emphasized that bail is a discretionary matter to be exercised judicially, and where the identity of the aggressor is unclear and injuries were sustained by both parties, the case falls within the ambit of further inquiry, justifying the grant of bail.
- Is the absence of mala fide on the part of the police an absolute bar to the grant of pre-arrest bail?
- Does the existence of injuries on both parties in a mutual fight warrant the grant of bail on the ground of further inquiry?
- Is the grant of pre-arrest bail a discretionary matter that requires a tentative assessment of the case?
- Section 337-A(1), Pakistan Penal Code 1860
- Section 337-A(2), Pakistan Penal Code 1860
- Section 337-F(5), Pakistan Penal Code 1860
ORDER
1. ' This revision petition arises out of the following facts: ' A Crime No,161 of 2000 was registered at Police Station Thothal on a report of the complainant for offences under sections 337-A(1 and 2) and 337-F(5) on 18-10-2000. The complainant Muhammad Nazir lodged a verbal report on the aforesaid police station that he was resident of village Gadian but he was living separately alongwith his family in village Bandral. On 12-10-2000, the buffalo of the complainant went to the field of Mirza Ali and Nizakat whereipon Nizakat son of Sardar Ali drove the buffalo to the dam side and left it there. The complainant asked him as to why he drove his buffalo to the side of the dam.
2. ' On this inquiry, they had a hard talk. Mirza Ali accused assaulted the complainant with a stick whereas Nizakat accused made a Lalkara to face dire consequence. The complainant went to his native village Gadian and narrated the whole story to his brothers. At about 6 p.m. When the complainant and his brother Muhammad Jamil were standing in road-side, the accused Mirza Ali son of Muhammad Akram, Nizakat Ali son of Sardar Ali, Sardar son of anonymous and Muhammad Yousaf son of Akram came there equipped with sticks and they raided complainant and his brother. The accused Mirza Ali hit the complainant with a stick on his back and then gave a blow on the head of Muhammad Jamil with the stick. On this, Mst. Sakina Bibi the mother of the complainant, Mst. Jamila Bibi Muhammad Bashir and Rasheed Idrees were attracted to the spot and they attempted to rescue the complainant and his brother. Meanwhile, the accused Nazakat All inflicted different injuries to Mst. Jamila on her left shoulder and right hand. Mirza All accused gave two successive blows with his Danda to the father of the complainant on his left arm and foot.
3. During the course, Javid son of Khushi Muhammad also arrived there. Muhammad Yousaf accused inflicted different injuries to Mst. Sakina Bibi on her body. He also caused different blows to Rashad Idrees on different parts of the body. The accused party with a pre-concert raided the complainant party and injured them with sticks etc. As disclosed in the report.
4. ' The police after registration of the case started investigation and during investigation the accused-respondents approached District Court of Criminal Jurisdiction, Mirpur for concession of bail through a pre-arrest bail application. They were granted ad interim relief which stood confirmed later on through the impugned order. Hence this revision petition to reverse the same.
5. ' The learned counsel for the complainant assisted by the Assistant Advocate-General (P.P.) argued that it was not a case of pre-arrest bail as the accused-respondents failed to point out any mala fide, ulterior motive or foul play on the part of the police and in absence of the aforesaid requirements the Court below travelled in the wrong direction while allowing a pre-arrest bail application. It was further submitted that the accused-respondents were linked with the alleged offence and they were wrongly allowed on bail as the offence levelled against them was non- bailable. The accused respondent Mirza Ali was attributed a grievous hurt, therefore, it was wrongly opined by the Court below that their case required further probe into their guilt.
6. ' On the other hand, the learned counsel representing the accused-respondents argued that it was the complainant party who raided the accused and during the course Mirza All accused was also injured and a medico-legal report showing his injury was also there on record. It was full ther submitted that prima facie the complainant party appeared to be aggrieved as according to the report, the complainant was assaulted in the morning and he went to inform his brother etc. To take revenge consequently, all his family members including brother, mother and father with pre- planning raided the accused Mirza Ali. Therefore, according to him, it was yet to be seen as to who was aggressor. The medico-legal report placed on record showed the injuries to the complainant party as simple except one to the complainant as grievous but it was not clear that which injury out of two allegedly sustained by the complainant was grievous. Moreover, no fracture was shown by the doctor and the seat of injury showed that the possibility of the same by falling on the ground or during scuffling could not be ruled out in the circumstances of the case. The case is out of prohibitory clause and the accused-respondents were facing trial before the competent Court and no useful purpose could be served while sending them behind the bars, the learned counsel maintained.
7. ' It is correct that the consideration while deciding a pre-arrest and post-arrest bail applications are somewhat different. A cautious approach is required while deciding a pre-arrest bail application however, the broad principles governing the bail matters are the same. No doubt any mala fide on the part of the prosecution is one of the factors to be looked into at the time of deciding a pre-arrest bail application yet if a case for bail is made out, it is not fair to withhold the concession simply because the accused failed to point out any ulterior motive on the part of the police. The Courts are expected to form a tentative view while deciding bail matters and if the facts of the case suggest to allow a pre-arrest bail application, it should be done so even in absence of any mala tide on the part of police. The absence of mala fide or ulterior motive on the part of police are not allowed to debar an accused from the concession of bail if he succeeds to make out his case for bail. To allow bail or to refuse the same is a discretionary matter and it should be exercised in a judicial fashion. Here in this case, the concession extended to the accused-respondents is not found to have been given perversely or against the settled principles of law governing the bail matter. It is there in the report that the complainant and the accused Mirza Ali entered into quarrel in the morning and the complainant went to inform his relatives at his native village, therefore, the complainant party appears to be aggrieved as such it cannot be said at this stage that who was the aggressor. The injuries sustained by both the parties also suggest to shift the case to the ambit of further probe into guilt of the accused party. The case has been challaned and the accused- respondents are facing trial before the competent Court, therefore, it will serve no useful purpose to recall the impugned order in the circumstances of the case.
8. ' The result is that the impugned order is allowed to stand and the revision petition being without substance is hereby dismissed.