Muhammad Zameer etc. Vs The State etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

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Muhammad Zameer and another Versus The State and another S.No. of order/ Date of order/ Order with signature of Judge and that of Proceeding Proceeding parties or counsel, where necessary. 29.09.2021 Mr. Shahid Bashir Pannoo, Advocate with petitioners. Mr. Sultan Asghar Chattha, Deputy Prosecutor General for the State with Yasir Ali, SI.

Malik Ghulam Farid Sanotra, Advocate for complainant.

Through this petition, Muhammad Zameer and Rasib Gulfam Cheema, petitioners supplicate pre-arrest bail in case FIR No. 370/2021, dated 04.07.2021 for offences under sections 337-A (i), 354, 452, 34, PPC, registered at Police Station Ghakhar Mandi, District Gujranwala.

2.The rundown of the case according to FIR is that on 15.06.2021 at around 02.00 p.m. the petitioners alongside their co-blamed intruded the house of the complainant, insulted the modesty of woman folk and furthermore caused wounds on their body. Subsequently, this FIR.

3.Contentions heard and record perused.

4.As per narration of the FIR, the alleged occurrence had taken place on 15.06.2021, whereas, FIR was lodged on 04.07.2021. There is delay of 19 days in lodging the FIR and no explanation for such inordinate delay has

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been brought on record meaning thereby the same has been got registered after due deliberation and consultation. The Hon’ble Supreme Court of Pakistan in the case reported as “Muhammad Essa v. The State and another” (2012 SCMR 646) while taking notice of inordinate delay and other grounds confirmed the pre- arrest bail of accused person.

5.The petitioners have not been shown to be armed with any kind of weapon at the time of alleged occurrence. More so, for the attraction of section 452 PPC, preparation for causing hurt is sine qua non, which is very much lacking in this case. I would like to reproduce sections 451 & 452 PPC as under for the facilitation:-

451.“ Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extent to two years, and shall also be liable to fine, and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.”

452.“ Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

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It is crystal clear from the facts and circumstances of the case that petitioners were not armed with any weapon at the time of alleged occurrence, in this way applicability of section 452 PPC is highly doubtful. I fortify my view from the dictum laid down in the case law titled as “Muhammad Ishaq v. The State and others”(2012 SCMR 70) relevant portion whereof is reproduced for ready reference:-

“having heard learned counsel for the parties at some length, we find that admittedly the sole injury attributed to the petitioner in terms of F.I.R is not only Shajjah Khafifa making the offence bailable but even if the I.O found that petitioner was empty handed and the said finding has not been varied so. The question of application of section 452, Cr.P.C remains a moot point between the two officers i.e the Investigating Officer and the DSP.”

6.It evinces from the record that the complainant is sister-in-law (Bhabi) of accused persons and is living with their real brother. The petitioners have easy access to enter in the house of their brother due to the close kith and kin. It is admitted at all hands that the parties are closely related to each other, therefore, express penal provisions of section 452, PPC are not attracted against the petitioners as they had access to the houses of each other without interference. Reliance is placed upon the case law titled as Muhammad Ayub vs. Abdul Hameed and four others (2009 P.Cr.L.J. 1259) wherein this Court has observed as under:-

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Even otherwise, both the parties were closely related to each other and provisions of section 452, PPC were not attracted against them as they had access to the houses of each other without interference.

Reference can also be made to the case laws titled as Ghulam Ali and three others vs. The State (1991 P.Cr.L.J. 1293) and Khurram Bashir vs. The State and others

(2011 MLD 346).

7.This Court further noticed that a civil litigation is also pending for adjudication between the parties. Learned counsel for the petitioners has also annexed copy of suit for partition titled as “Muhammad Zameer v. Nasir Mehmood etc” which is pending for adjudication in the Court of learned Civil Judge First Class at Wazirabad, in this case, the defendant No.1 is husband of complainant. Similarly pendency of said civil litigation depicts that possibility of mala fide on the part of the complainant and ulterior motive cannot be ruled out. In this backdrop, I have no hesitation to hold that the petitioners have been falsely entangled in this case by the complainant for his unfair means and nefarious designs. Wisdom is derived from the case law titled as “Muhammad Bilal v. The State” (2008 MLD 231)

8.Learned counsel for the petitioners has also drawn attention of this Court towards document annexed with this petition as Annexure-G, that is a petition under

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section 491, Cr.P.C., filed by one Mst. Bushra Zameer wife of petitioner No. 1 for the recovery of petitioner No.1 Muhammad Zameer, Babar Nadeem and Rasib Gulfam (nominated accused of instant FIR) in the Court of learned Additional Sessions Judge/ Justice of Peace, Wazirabad wherein a bailiff was deputed for the recovery of supra mentioned detenus vide order dated 21.06.2021 and on the same day the afore mentioned petition was disposed of because the alleged detenus were arrested by the police of Gahkar Mandi vide Rapat No. 12 dated 21.06.2021 under section 107/151, Cr.P.C. Subsequently, the complainant succeeded to get register the instant case against the petitioners with mala fide intention.

9.Insofar as principles for grant of pre-arrest bail, i.e. mala fide or ulterior motive of the complainant and police is concerned, it is not possible in every case to prove the same, however, these grounds can be gathered from the facts and circumstances of this case. In case reported as Khalil Ahmed Soomro vs. The State (PLD 2017 S.C 730, the following principle has been enunciated:- “Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive / solid

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evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”

Similar view was also reiterated by the Hon’ble Supreme Court of Pakistan in the case reported as Shahzada Qaiser Arfat alias Qaiser vs. The State and another (PLD 2021 SC 708).

10.Even otherwise, if an accused person has a good case for post arrest bail mere at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail. It is by now well settled that merits of the case can also be taken into consideration while deciding the bail before arrest. Reliance is placed upon the case titled as “Khair Muhammad and another Vs. The State through P.G.Punjab and another”(2021 SCMR 130), wherein the Hon’ble Supreme Court of Pakistan held as under:- “....The concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of the complainant party. In the salutary judgment of this Court reported as “Meeran Bux v. The State and another” ( PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-

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arrest bail, even the merits of the case can be touched upon ....

11.Petitioners have joined the investigation and nothing is to be recovered from them, thus, no useful purpose would be served by sending them behind the bars.

12.In the backdrop of above facts and circumstances the involvement of the petitioners in the present case with malice and ulterior motive cannot be ruled out, this petition is, therefore, accepted and ad-interim pre-arrest bail already granted to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 1,00,000/- (one lac) each with one surety each in the like amount to the satisfaction of learned trail Court.

13.However, the observations made hereinabove are tentative in nature and the same are strictly confined to the disposal of instant bail application.

(Muhammad Tariq Nadeem) Judge Khurram

APPROVED FOR REPORTING

Judge