IN THE COURT OF 1st. Addl.
DISTRICT & SESSION JUDGE AT KARACHI WEST
B.B.A. No. 939/12
ALTAF Ahmad
Ansari …………………… APPLICANT
VERSUS
The STATE …………………… RESPONDENT
WRITTEN 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 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, the applicant and complainant, after divorce, have cold war/enmity/grudge
against each others and have some jealousy with them due to this the
complainant lodged FIR and implicated the applicant with malafide intention,
and there is apprehension to be arrested
by the said I.O for the ulterior motives
to humiliate and unjustified harassment
the Applicant in the eyes of society.
Relied upon: 1993 P. Cr. L. J 446
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. 2010 MLD
1971 KARACHI.
S.498 ---Penal Code (XLV of 1860),
Ss.406/420 /468 /471 ---Criminal breach of trust cheating and
forgery---Pre-arrest bail, confirmation of--Dispute between the parties was of civil nature, and which party was at fault and which agreement had been correctly
executed, was a question which could only be resolved by civil court, if any of
the parties would approach said court---For the time being possibility of false
implication of accused in the case due to chequered history of registration of
cases between the complainant and accused, could not be ruled out; and no
useful purpose could be served by sending accused behind the bars as accused
claimed that he had purchased the property and made payment---Nothing was in the case to be
recovered from the possession of accused and bail before arrest was meant to
protect the innocent citizens if they were involved in a criminal case with
mala fide intention or ulterior motive---Mala fide and ulterior motive on the part of the complainant was
apparent in the case and civil dispute seemed to have been converted into
criminal offence---Ad interim pre-arrest bail already granted to accused was confirmed,
in circumstances. 2010 MLD
1096 LAHORE
2.
That the Applicant belongs to respectable family, and
government servant, 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 04 months and 06 days in lodging the FIR which
shows that the story is manipulated and well conceived for the ulterior motives to humiliate and unjustified harassment
the Applicant in the eyes of society.
Relied upon: 1990 P.Cr.L.J 973
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 the other circumstances of the case---Interim
bail earlier granted was confirmed in circumstances. 1990 P.Cr.L.J 973.
Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.420 , 468
, 469, 470 & 471 ---Cheating, forgery, forged documents, using as genuine a
forged document---Pre-arrest bail, confirmation of---Further inquiry---Considerable delay
in lodging of and no cogent reason had been given for such delay---No direct
evidence or material was recovered from the accused as to the preparation of
the forged coupons by accused---Complaint had been lodged on
hearsay---Mala fide could not be overruled on the part of the complainant due to fear of business competition/rivalry in consequence of future
expansion of activities---Alleged
evidence was based on documents which were in possession of the Inquiry Officer
and there was no possibility of accused tampering the documentary , evidence;
and accused was not in a position to influence the witnesses---Case was fit for further inquiry
within the meaning of S.497(2), Cr.P.C., which entitled accused to confirmation
of bail---Interim bail already granted to
accused was confirmed on same terms and conditions.
2010 MLD 1971 KARACHI.
3.
That mere mentioning of the name of accused in F.I.R would not justify rejection bail without considering the
other circumstances of the case; Interim bail earlier granted was confirmed in
circumstances.
As Held: 1990 P.Cr.L.J 973.
S.498---Mere
mentioning of the name of accused in F.I.R., held would not justify
rejection of anticipatory bail without considering the other circumstances of
the case--- Interim bail earlier granted was confirmed in circumstances.
1990 P.Cr.L.J 973.
4.
That abnormal unexplained delay of more than 04 months and 06 days in lodging the FIR, in the circumstances creates doubt, hence this case has become further inquiry.
Relied
upon: 2005 MLD 535
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.
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 ---Penal Code (XLV of 1860), Ss.420 , 468 &
471---Pre-arrest bail---Unexplained delay in F.I.R.---Benefit of doubt---Prima facie case---Scope---Allegation against accused was that he
along with his deceased brother, prepared forged documents and illegally
occupied the land purchased by complainant---F.I.R. was registered with a delay of five months and brother of accused had already died ten years before lodging of
F.T.R.---Effect---Delay of five
months in lodging of F.I.R. was unexplained on account of which veracity of
prosecution case had become doubtful---Death of brother of
accused had also created doubts about authenticity of prosecution case, the
benefit of which even at bail stage must go to accused---Offences mentioned in F.I.R. were
prima facie not attracted to the case of accused, which even otherwise were not hit by prohibitory clause of S.497
Cr.P.C.---Pre-arrest bail was granted in circumstances.
2007 PCRLJ
112 LAHORE
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.
5.
That the allegation
leveled in the FIR is Civil nature case, while Neither Copy of Ownership of the said House in question nor the
afore said alleged forged Power has been annexed with FIR.
Relied Upon:
S.498 ---Penal Code (XLV of 1860),
Ss.406/420 /468 /471 ---Criminal breach of trust cheating and
forgery---Pre-arrest bail, confirmation of--Dispute between the parties was of civil nature, and which party was at fault and which agreement had been correctly
executed, was a question which could only be resolved by civil court, if any of
the parties would approach said court---For the time being possibility of false
implication of accused in the case due to chequered history of registration of
cases between the complainant and accused, could not be ruled out; and no
useful purpose could be served by sending accused behind the bars as accused
claimed that he had purchased the property and made payment---Nothing was in the case to be
recovered from the possession of accused and bail before arrest was meant to
protect the innocent citizens if they were involved in a criminal case with
mala fide intention or ulterior motive---Mala fide and ulterior motive on the part of the complainant was
apparent in the case and civil dispute seemed to have been converted into
criminal offence---Ad interim pre-arrest bail already
granted to accused was confirmed, in circumstances. 2010
MLD 1096 LAHORE
6.
That Accused had also
joined the investigation which has
been completed, Challan has been submitted and applicant no more required for the
purpose of investigation.
Relied Upon:
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.
7.
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, 468, 471, 448/34 PPC which has been registered. While offence under Ss.468 & 471 , P.P.C." are
non-cognizable, whereas offence
under S.420 & 448 P.P.C. are bailablea
nd compoundable---None of the
offences fell within the prohibitory clause of S.497, Cr.P.C. and question of forgery could not be determined
at bail stage.
Relied Upon: 2008 YLR 2662 LAHORE
S.498 ---Penal Code (XLV
of 1860), Ss.420 , 468 & 471 ---Pre-arrest bail, confirmation of---Complainant had a remedy by moving an
application seeking possession in the suit by way of amendment in the plaint----Question
as to whether accused could be prosecuted under S.420 , P.P.C. as well as S.
468 , P.P.C. was one of further inquiry and offence under Ss.468 & 471, P.P.C. were non-cognizable, whereas offence under
S.420 , P.P.C. was .compoundable---None of the offences fell within the
prohibitory clause of S.497, Cr.P.C. and question of forgery could not be determined at bail stage---Pre-arrest
bail already granted to accused was confirmed, in circumstances. 2008 YLR
2662 LAHORE.
8.
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.
Relied upon:
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.
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.PC--- consider favourably by granting bail as a
rule but decline to do so in exceptional cases. 2009 SCMR 1488.
9.
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.
Relied Upon:
S. 497(2)---PPC, Ss. 353/324/34---Bail grant
of---Investigating Officer was directed to appear and disclose as to whether
any case pending against accused but Despite providing opportunity, the investigating Officer has not
appeared nor learned counsel for state is in a position to disclose the
pendency of any other case against the present applicant in a case of firing. Bail granted.
2007 YLR 1727 [p. 1728] A.
10.
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.
11.
That the applicant/accused is ready to furnish solvent surety to the entire satisfaction of this
Hon’ble Court.
12.
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 confirm interim bail before arrest
under the fact and circumstances mentioned above.
Prayed
accordingly in the interest of Justice.
Karachi.
Dated:---/08/12.
S M ZUBAIR
Advocate for the Applicant
