Saturday, August 4, 2012

Arguments for Confirmation of Bail Before Arrest




                         


IN THE COURT OF DISTRICT & SESSION JUDGE AT KARACHI CENTRAL

B.B.A. No. 688/12


Abdul GHANI              ……………………                 APPLICANT



VERSUS


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




ARGUMENTS FOR CONFIRMATION OF 
BAIL BEFORE ARREST APPLICATION U/S. 498 CRPC

On behalf of the applicant, above named, it is prayed that this Hon'ble Court may be pleased to confirm interim bail before arrest under the fact and circumstances mentioned below:-

GROUNDS
1.                  That not only Main accused but also the present Applicant has been acquitted, on 31-01-2012, in this Criminal Case bearing No. 2799/2010, FIR No. 371/2010, U/Sec. 489-F, P.S Sharifabad by Learned Trial Court No. VII Judicial Magistrate Karachi Central.

True Copy of Judgment of acquittal is annexed herewith as Annexure “A”.

2.                  That the Applicant is quite innocent and story in this case is false and fabricated by the complainant on instance of I.O of the case to humiliate and unjustified harassment the Applicant in the eyes of society, and there is apprehension to be arrested by the said I.O 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.
1993Cr. L. J 446.

3.                  That the Applicant is a business man and 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 an abnormal unexplained delay of more than 1 year, one months (13 months) and 10 days in lodging the FIR which shows that the story is manipulated and well conceived for the ulterior motives.
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.
                       
As held even in Case of 302 PPC
S.498 & 497(2)---PPC, S.302/34---Qatl-e-amd---interim bail, confirmation of---Further inquiry---Delay in lodging the FIR of almost 15 hours, had not been explained---such aspect of the matter appeared to be most crucial---Mala fides and false implication of accused, in circumstances could not be ruled out---Role of accused, in circumstances, was a matter of further enquiry---Interim bail granted to accused, was confirmed, in circumstances.
2012 YLR 788.

4.                  That abnormal unexplained delay of more than 1 year, one month (13 months) and 10 days in lodging the FIR, in the circumstances hence this case has become 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.
2007 MLD 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

5.               That mere mentioning of the name of accused in F.I.R would not justify rejection bail without considering thee other circumstances of the case; Interim bail earlier granted was confirmed in circumstances.
As Held:
S.498---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.

6.                  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 489-F/34 PPC which has been registered under the instructions of TPO without taking into consideration and applying his mind on the contents of the complaint.

7.                  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.

As 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.

As 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---Bail 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.P.C--- consider favorably by granting bail as a rule but decline to do so in exceptional cases.
2009 SCMR 1488.

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.

10.             That other ground may be argued at the time of hearing of this bail application.

PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to grant him bail before arrest under the fact and circumstances mentioned above.
Prayed accordingly in the interest of Justice.
Karachi.
Dated: 04/07/12.                                                                                            
S M ZUBAIR
Advocate for the Applicant



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