TALIB HUSSAIN and anothers vs THE STATE
This matter concerns a post-arrest bail application filed by the applicants, Talib Hussain and others, who were charged with offences under sections 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 114, 147, and 148 of the Pakistan Penal Code 1860, arising from a mutual altercation between two parties over the use of a common thoroughfare. The core legal question was whether the applicants were entitled to the grant of bail given the nature of the injuries inflicted and the duration of their pre-trial incarceration. The Court observed that the incident appeared to be a free fight between two groups, and the determination of the initial aggressor remained a matter for trial. Crucially, the Court held that the offences charged did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. Furthermore, considering the applicants had been in custody for over nine months and the State did not oppose the application, the Court granted bail, establishing that where offences do not fall within the prohibitory clause, bail is generally the rule and refusal the exception.
- Does a free fight between two parties where the initial aggressor is undetermined justify the grant of bail?
- Are offences under sections 337-A and 337-F of the Pakistan Penal Code 1860 considered to fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Is prolonged pre-trial incarceration a valid ground for the grant of bail when the offence does not fall within the prohibitory clause?
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' The applicants have sought bail in a case pending in the Court of Civil Judge and F.C.M., Thull for an offence under sections 337-A(i), (ii), F-(i), F-(v), 114, 147 and 148, P.P.C.
2. ' The incident is said to have taken place on 19-6-2002 at 6-00 p.m. In which two parties engaged in free fight. According to the F.I.R. In the instant case lodged by Muhammad Moosa, there were 8 assailants namely Bhagio empty-handed, Baboo alias Moula Dad armed with hatchet, Ghulam Hussain alias Wadero, Khadim Hussain, Talib Hussain, Ghulam Sarwar and Hamal each armed with a Lathi and Anwar armed with a shot gun. As per F.I.R. In the counter case lodged by Moula Dad alias Babu at the same police station, the assailants were Muhammad Moosa (complainant in the present case), Mulla Kouro, Abdul Latif, Muhammad Bux, Sher Muhammad, Shahban and Muhammad Yousif who were armed with Lathis except Muhammad Shahban who had a gun. The dispute between the parties had arisen over use of a common thoroughfare, each party alleging that the opposite-party restrained them from using the same. The houses of both parties are adjoining each other. It is alleged in the F.I.R. In the present case that applicant Talib Hussain gave Lathi blows to Muhammad Sulleman and Ghulam Sarwar inflicted Lathi blows upon Shahban. The present applicants were arrested on 2-7-2002.
3. ' I have heard learned counsel for the applicants and learned Assistant Advocate-General.
4. ' The joint reading of both the F.I.Rs, reveals that there was a fight between 8 persons on one side and 7 on the other, majority of them being armed with Lathis. Bone of contention is also common in both cases as it is alleged that the adversary in each case opposed use of the same common path. It was almost a free fight. As per Medical Certificate two injuries were caused to Sulleman, which are attributed to applicant Talib, one of these injuries is Shajah-e-Madiah punishable with Qisas, Arsh and imprisonment for 5 years, while the other injury is Jurh Ghayr Jaifah Damiah punishable with Daman and imprisonment for one year. Applicant Ghulam Sarwar, allegedly, caused an injury to Shahban and the Medical Certificate shows that it was a Jurh Ghayr Jaifah Damiah. In view of this, the offences do not call within prohibitory clause of section 497, Cr.P.C. The point of aggression is yet to be determined at the trial. Moreover, the applicants have remained in custody for a period of more than 9 months. Learned Assistant Advocate-General also, in the circumstances enumerated above, did not oppose the bail.
5. ' In view of the circumstances discussed above, the application is allowed. The applicants be released on bail, each furnishing one surety in the sum of Rs,50,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.