Wednesday, 17 October 2018

Delay in MLC shows Malafide

PLJ 2018 Cr.C. 710[Lahore High Court, Multan Bench]
PresentSardar Muhammad Sarfraz Dogar, J.
HAFIZ GHULAM HAIDER--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 6438-B of 2017, decided on 13.11.2017.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 354 & 379--Pre-arrest bail--Grant of--Confirmed--Allegation of--Assaulted, outrage her modesty coupled with extortion--Inordinate delay in lodging FIR--As per FIR, no weapon of offence has been used by petitioner in order to give beat to complainant rather in MLC of injured/complainant it is written that blunt weapon has been used by petitioner, which smacks mala fide on part of complainant--Moreover, MLC was conducted after eight days of occurrence--Besides, complainant did not appear before Radiologist in order to strengthen her MLC which shows false implication of petitioner in this case--Prima facie, prosecution has no sufficient incriminating material to connect petitioner with commission of alleged offence and chances of petitioner’s false implication with deliberation after consultation cannot be ruled out--Bail was confirmed.
                                                                          [Pp. 711 & 712] A & B
Good Case for Post arrest bail--
----Settled Law--It is settled law if accused has a good case for post arrest bail, plea of complainant to send him behind bars for few days by dismissing her application for pre-arrest bail was held to be ludicrous.            [P. 712] C
Muhammad Aslam v. The State 2000 YLR 1314, Nazar Muhammad and 2 others v. The State 2012 PCr.LJ. 430 & Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427, ref.
Pre-arrest bail--
----Extraordinary relief--To protect innocent persons--It is held that pre-arrest bail is an extra ordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motive--Needless to mention here that object of pre-arrest bail is to protect innocent persons from harassment, humiliation and incarceration at hands of police. [P. 712] D
Mr. Muhammad Basir Khan Sikhani, Advocate with Petitioner.
Mirza Abid MajeedDPG for State.
Mr. Israr Hayat Sulehria, Advocate for Complainant.
Date of hearing: 13.11.2017.
Order
By filing instant petition under Section 498, Cr.P.C., the petitioner namely Hafiz Ghulam Haiderseeks pre-arrest bail in case FIR No. 554/2017, dated 12.9.2017, under Sections 354/379, PPC, registered with the Police Station Khangarh, District Muzaffargarh.
2.  Briefly, the facts of the case as reported by the complainant are that on the date of occurrence, the petitioner has assaulted the complainant in order to outrage her modesty coupled with extortion from her Rs. 12,000/-.
3.  Heard. Record perused.
4.  There is inordinate delay of almost eight days in lodging of instant FIR, which is fatal to the case of prosecution. Guidance is sought from Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949).
5.  As per FIR, no weapon of offence has been used by the petitioner in order to give beat to the complainant rather in the MLC of the injured/complainant it is written that blunt weapon has been used by the petitioner, which smacks mala fide on the part of the complainant. Moreover, the MLC was conducted after eight days of the occurrence. Besides, the complainant did not appear before the Radiologist in order to strengthen her MLC which shows the false implication of the petitioner in this case.
6.  The above facts leads me to draw an inference that prima facie, the prosecution has no sufficient incriminating material to connect the petitioner with the commission of alleged offence and


chances of petitioner’s false implication with deliberation after consultation cannot be ruled out.
7.  It is settled law if accused has a good case for post arrest bail, the plea of the complainant to send him behind the bars for few days by dismissing her application for pre-arrest bail was held to be ludicrous. Case law is cited upon “Muhammad Aslam v. The State” (2000 YLR 1314) and Nazar Muhammad and 2 others v. The State” (2012 P Cr. L J 430). As per dictum laid down by the Hon’ble Supreme Court of Pakistan in the case of Rana Muhammad Arshad v. Muhammad Rafique and another” (PLD 2009 Supreme Court 427), it is held that pre-arrest bail is an extra ordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motive. Needless to mention here that object of pre-arrest bail is to protect the innocent persons from harassment, humiliation and incarceration at the hands of police.
8.  For the above reasons, this petition is accepted and ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.
(A.A.K.)          Bail confirmed

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