HUSSAIN BUX alias BABU CHACHAR and another vs THE STATE
This matter arises from criminal bail applications filed by the accused persons seeking pre-arrest bail in respect of an F.I.R. registered under allegations of house trespass with the intent to commit Zina-bil-Jabr. The core legal question is whether the applicants were entitled to pre-arrest bail when the primary allegations appeared to be based on hypotheses and conjectures, without direct overt acts of outraging modesty attributed to them, and when the applicability of the penal sections fell within non-prohibitory clauses. The court held that since the applicability of Section 449 of the Pakistan Penal Code was doubtful and sections 451 and 452 fell outside the prohibitory clause, keeping the accused behind bars without substantive allegations was improper and their arrest was mala fide. Consequently, the court confirmed the interim pre-arrest bail for the applicants, establishing the principle that bail should not be withheld where the specific penal provisions applicable do not fall within the prohibitory clause and the allegations require further inquiry.
- Whether pre-arrest bail should be granted when the applicability of penal sections falling within the prohibitory clause remains doubtful?
- Can an accused be kept behind bars when no substantive overt act of a serious criminal offence is attributed in the F.I.R.?
- Are offences under sections 451 and 452 of the Pakistan Penal Code covered by the prohibitory clause?
- Section 449, Pakistan Penal Code 1860
- Section 451, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
ORDER
1. ' I would like to decide Cr.B.A. No,672 of 2003 and Cr.B.A. No,673 of 2003 by a single order as they arise out of the same bail order.
2. ' The allegations are that on the night of 14/15-11-2003 accused Husain Bux and Rahim Bux armed with guns whereas accused Dildar and Karim Bux armed with pistols and hatchet respectively trespassed into the house of complainant in order to commit Zina-bil-Jabr with Mst. Rehsam daughter of complainant. The complainant and other house inmates raised cries which attracted the neighbours and thereafter the culprits filed from the scene of offence. After registration of F.1.R.
3. Police made efforts to apprehend the accused, who applied for pre-arrest bail before the Court of Sessions Judge, Dadu. The said bail application was dismissed by the learned IVth Additional Sessions Judge, Dadu vide order, dated 4-12-2003.
4. ' I have heard Mr. Shafi Muhammad Memon, learned counsel for the applicant and Mr. Rasheed Ahmed Qureshi learned A.A.-G. The latter has opposed the bail plea of accused.
5. ' The record shows that four persons trespassed into the house of complainant. The allegations contained in the F.I.R. Are based on hypothesis and conjectures. No overt act has been attributed to applicants in the F.I.R. They simply trespassed in the house and were standing near the cot of Mst.
6. Rehman. Neither the accused had outraged the modesty of the girl nor any other allegation is levelled against them that they tried to commit any other criminal offence. The applicability of section 449, P.P.C. Is still in mystery. It is yet to be established by the prosecution that the offence is falling under section 449 or 451 and 452, P.P.C. Sections 451 and 452, P.P.C. Are 'not covered by prohibitory clause. Such type of allegations can easily be levelled in the F.I.R. Against any of the person. For these reasons it would not be proper to keep the persons behind the bars without any substantive allegations of criminal act against them. Apparently, it appears that registration of F.I.R.
7. Is for some ulterior motives. For these reasons, the arrest of the applicants shall be mala fide.
8. Hence the interim bail granted earlier to accused Hussain Bux and Rahim Bux is confirmed on the same terms and conditions whereas accused Dildar and Karim Bux are to be released on bail upon furnishing surety in the sum of Rs,50,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.
9. Interim pre-arrest .