2012 PLP 362 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending his arrest at the hands of the police, through the instant petition, the petitioner has sought for his pre-arrest bail in case F.I.R. No.235 of 2011, dated 23-7-2011, offence under sections 337-F(v), 337-L(ii), 452, 34, P.P.C., registered with Police Station Saddar, Talagang, District Chakwal.

2. Allegation against the petitioner, in brief, as per contents of F.I.R. is that on 20-7-2011 at 7-00 a.m. along with his co-accused Munawar Sultana while entering the house of the complainant attacked on her and started maltreating her, whereby she was injured. The petitioner also fractured the index finger of right hand of the complainant while twisting the same.

3. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been involved in the instant case by the complainant against the actual facts and circumstances with mala fides. Learned counsel further submits that there is unexplained delay of three days in lodging the F.I.R. Further submits that the complainant party has suppressed the true facts while got registering the instant case against the accused persons as during the incident, the petitioner as well as his mother namely Munawar Sultana also received injuries during the incident and they were also medically examined by the Medical Officer. It is contended that in fact the complainant party was the aggressor and they were aggressed. Learned counsel next submits that the daughter of the complainant was married with the petitioner, but there was a dispute between the spouses and as such suit for dissolution of marriage, suit for recovery of maintenance allowance and suit for recovery of dowry articles are pending adjudication between the parties before the learned trial court. It is next submitted that though the complainant claimed that her index finger has been fractured, but the injured was re-examined by the Medical Board, the opinion of the same is reproduced as below:-- "The Standing Medical Board is of the unanimous opinion that regarding Injury No.1 the possibility of self suffered/friendly hand cannot be ruled out". It is next argued that due to dispute of the petitioner with his wife/ daughter of the complainant, he has been falsely roped in the instant case with mala fides. Learned counsel submits that in view of above facts and circumstances, the petitioner is entitled to the relief prayed for.

4. Contrarily, learned D.P.-G. assisted by learned counsel for the complainant has vehemently opposed this petition contending that the petitioner is named in the F.I.R., who not only maltreated the complainant, but also fractured her index finger of right hand. It is argued that through the Medical Board has opined about Injury No.1 that the possibility of self suffered/friendly hand cannot be ruled out, but the said opinion is not certain. It is next submitted that the pre-arrest bail is an extraordinary relief, which cannot be granted sparingly.

5. Arguments advanced from both sides have been heard. Record available on file perused.

6. There is no denial to this fact that the petitioner is named in the F.I.R., but the occurrence in the instant case took place on 20-7-2011, while the matter was reported to the police on 23-7-2011, i.e. with the delay of three days, for which the prosecution has rendered no explanation. Admittedly the daughter of the complainant was married with the petitioner and subsequently due to strained relations between the spouses, suits are pending adjudication before the learned civil court. It is an admitted fact that persons from both sides received injuries, but the complainant has suppressed the true facts in this regard while got registering the case. At this stage, it cannot be determined that both the petitioner party is the aggressor or the complainant party and this fact can only be resolved by the learned trial court after recording the evidence. The Medical Board has also opined about Injury No.1 that possibility of self suffered/friendly hand cannot be ruled out. Moreover, the Investigating Officer present before the Court frankly conceded that the occurrence has taken place on the basis of some domestic issue and both the sides received injuries in the occurrence. It is a settled principle of law that the Court while deciding the pre-arrest bail can touch upon the merits of the case. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Meeran Bux v. The State and another PLD 1989 SC 347

7. For the foregoing facts and circumstances, sufficient grounds exist to believe that the petitioner has been roped in this case with mala fide intention. Resultantly by allowing this petition, ad interim bail already granted to the petitioner in terms of order dated 8-9-2011 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial court. N.H.Q./N-81/L Pre-arrest bail allowed.