Tuesday, May 8, 2012

Written Arguements B.B.A.


IN THE COURT OF DISTRICT JUDGE AT  KARACHI CENTRAL

B.B.A. No. 525/12



Muhammad Hanif    …………………..………       APPLICANT


VERSUS


The STATE      ………………………………………. RESPONDENT
 


WRITTEN ARGUEMENTS
1.            That the Applicant is quite innocent and story in this case is false and fabricated by the complainant on instance of police, especially I.O. who is relative of main co-accused and there is apprehension to be arrested by the said police for the ulterior motives.

Relied upon:
S.498---Arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for the grant of pre-arrest bail.
1993 P. Cr. L. J 446.

2.            That the Applicant belongs to respectable family this case has been made mala fidely for just to harass and humiliate in eyes of the society, as there is abnormal delay of more than 8 months in lodging the FIR  or taking recourse to law was not explained.

Relied upon:
S.498---Abnormal delay of more than five months in taking recourse to law was not explained---Mere mentioning of the name of accused in F.I.R., held would not justify rejection of anticipatory bail without considering thee other circumstances of the case--- Interim bail earlier granted was confirmed in circumstances. 1990 P.Cr.L.J 973.

3.            That the alleged cheque was issued to a person Muhammad Ali, the said cheque was deposited in account of Muhammad Ali, the complainant is Muhammad Ali, and accused is Muhammad Ali, it is yet to be determined by Trial Court to whom the said cheque was really issued, the same would be determined at the time of trial not at bail stage. The situation is doubtful and it is a fit case of further inquiry.

Relied upon:
S.498/497 (2)---Case of accused, in circumstances had become one of further inquiry within the meaning of subsection (2) of S.497 Cr.P.C---interim pre-arrest bail granted to accused, was confirmed accordingly.
2007MLD 1234.

S.498---Grant of bail---Benefit of doubt---Benefit of every doubt even at bail stage was to be given to the accused. The case of petitioner, thus is certainly opened to further inquiry into his guilt and is covered under the subsection (2) of S.497 Cr.P.C. Interim pre-arrest bail confirmed.
2005 MLD 535

4.            That the allegation leveled in the FIR is Civil nature case, and main accused in whose account the alleged Cheque has been deposited and the same was cashed and withdrawn the said amount, neither has been arrested yet and nor he approached for pre-arrest bail, due to friendly relations with I.O; and delay of more than 8 months in lodging the FIR, in the circumstances this case has become further inquiry.

As Held:
S.498/497 (2)---Case of accused, in circumstances had become one of further inquiry within the meaning of subsection (2) of S.497 Cr.P.C---interim pre-arrest bail granted to accused, was confirmed accordingly.
2007MLD 1234.
                                                                                        
5.            That from perusal of the contents of FIR it is very clear that the complainant has concocted a story, and no prima facie case is made out under Section 420/416/414 PPC which has been registered under the instructions of police specially I.O without taking into consideration and applying his mind on the contents of the complaint, the other Co-accused is relative of I.O.

6.            That the present crime is not punishable with 10 years or R.I or more, hence it does no fall within ambit of prohibitory clause of section 497 Cr.PC.

Held:
S.497/498---Bail---Grant of bail in a case where the offence does not fall within the prohibitory clause is a rule while its refusal should be an exception---Basic rule is bail and not jail.
1993 P. Cr. L. J 446 vide [p. 451] G.

Held:
S.498---Though the offence was not bailable yet High Court cannot ignore the facts that the offence does not fall prohibitory clause of S.497 Cr.P.C. and in absence of exceptional circumstances pre-arrest bail could even be claimed as of right---Accused had also joined the investigation and as such he was no more required for the purpose of investigation---Bial was confirmed.
PLJ 2009 Cr. C. (Lahore) 1310.

S.497/498---Bail---Principles—Courts in cases, where offence falls within non-prohibitory clause S.497 Cr.PC--- consider favourably by granting bail as a rule but decline to do so in exceptional cases.
2009 SCMR 1488.

7.            That investigation has been completed, Challan has been submitted and applicant no more required for the purpose of investigation.

Held:
Accused had also joined the investigation and as such he was no more required for the purpose of investigation---Bial was confirmed.
PLJ 2009 Cr. C. (Lahore) 1310.



8.            That the applicant is not a previous convicted nor a hardened criminal and neither he will temper with P.Ws nor he will abscond and he will join the prosecution for investigation, as he is permanent resident of Karachi.


9.            That if the accused/applicant is not released on bail he will not be able to defend him properly and he shall be suffered irreparable loss which cannot be measured monetarily and will be humiliated in the eyes of the society.


PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to confirm interim bail before arrest under the fact and circumstances mentioned above.

Prayed accordingly in the interest of Justice.
Karachi.
Dated: 09/05/12.                                                                                    
S M ZUBAIR
Advocate for the Applicant

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