2008 PLP 555 (MLD)

TARIQ SHAMIM, J.

Through this petition, the petitioners seek pre-arrest bail in case F.I.R. No. 1281 of 2007, dated 12-8-2007 for offences under sections 337-A(iii), 337-F(iii), 337-L(2), 354/34, P.P.C., registered at Police Station Defence Area, Lahore.

2. Briefly stated the facts of the case are that the complainant, who is sister-in-law of petitioner No.1, her husband and two others were allegedly injured by the petitioners and their co-accused Qaiser Abbas in consequence of a family dispute.

3. The learned counsel for the petitioners contends that there is delay of four days in lodging of the F.I.R.; that there is a family dispute between the parties and, in fact, it was the complainant side who had aggressed upon the petitioners as the occurrence had taken place in the shop of the petitioners; that petitioner No.1 was injured during the occurrence which fact was concealed by the complainant in the F.I.R.; that with exception of injury falling under section 337-A(iii), P.P.C. all other offences do not attract the prohibitory clause of section 497, Cr.P.C.; that the wife of petitioner No.1 had joined investigation and a number of affidavits had been submitted in defence of the petitioners which reveal that the case as set up by the prosecution against the petitioners is false and concocted; that the petitioners were initially arrested by the police and post-arrest bail was allowed to them by the learned Illaqa Magistrate which was cancelled by the learned Additional Sessions Judge as subsequent to lodging of F.I.R. offences under section 337-A(iii) and 337-F(iii), P.P.C. had been added; that during investigation, no weapon was recovered from the possession of petitioner No.1 and that the petitioners have been implicated in the case by the complainant out of malice and for ulterior motive, therefore, they are entitled to be released on bail.

4. The learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the petition.

5. I have heard the learned counsel for the parties and gone through the record.

6. The delay of four days in lodging of the F.I.R. has not convincingly been explained by the complainant which, therefore, creates doubt about the veracity of allegations levelled therein. It is an admitted fact that the occurrence had taken place in the shop of petitioner No.1 and the stance taken by the learned counsel for the petitioners that the petitioners had been aggressed upon by the complainant and others does not appeal to be without basis as in the course of the said occurrence, petitioner No.1 also sustained a number of injuries including one on the temporal region and another on the left ear with cartilage exposed. The injuries by no stretch of imagination can be termed as self-inflicted. It has also been noticed that petitioner No. 1 was examined earlier than the complainant as the time of examination recorded in the MLC of the petitioner is 10-55 p.m. on 8-8-2007 whereas the time recorded in the medico-legal report of Mst. Fakhira-complainant is 10-58 p.m. The injuries suffered by petitioner No.1 in the occurrence were suppressed by the complainant in the F.I.R. which bespeaks of mala fide on her part. Further, the case as set up in the F.I.R. is belied by the affidavit submitted by the wife of petitioner No.1 (original on the police record) in which she has completely denied all allegations levelled by the complainant in the F.I.R. and has also stated that for the last about four years the complainant was interfering in her matrimonial life and was exerting pressure on her to obtain divorce from petitioner No.1. Apart from her affidavit, there are eleven affidavits on the record sworn in by the respectables of the area in which the petitioners have been shown as victim of aggression of the complainant party. A perusal of the record reveals that the said affidavits were neither taken into consideration by the police during investigation nor the said persons were associated with the investigation proceedings. The petitioners were allowed bail by the learned Ilaqa Magistrate as initially the F.I.R. was recorded under sections 354 and 337-L(2)/34, P.P.C. but subsequently sections 337-A(iii) and 337-F(iii) P.P.C., were added and consequently, their bail was cancelled by the learned Additional Sessions Judge. So far as petitioner No. 2 is concerned, he is only alleged. to have caused injury which attracts the provisions of section 337-F(iii) and since the same is punishable with a maximum sentence of three years, therefore, the same does not tall within the prohibitory clause of section 497, Cr.P.C.

7. For what has been stated above, this petition is accepted and the ad interim pre-arrest bail allowed to the petitioners vide order, dated 18-12-2007 is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. M.H./S-206/L Bail granted.