1. ' By this order I intend to dispose of this pre-arrest bail application bearing Cr.B.A. No.453 of 2003, filed on behalf of applicant, Muhammad Khalid, in a case bearing F.I.R. No.40 of 2002 of Police Station, Baghdadi, District Karachi South for offence under section 335, P.P.C.
2. ' When on 24-4-2002, this matter was placed before me, I without dilating upon the merits of the case or otherwise, had granted interim pre-arrest bail to the applicant and issued notice to the Advocate General Sindh. Thereafter, the case has been adjourning time and again either on account of non-availability of p9lice papers or on the ground of learned counsel for the applicant being pre-occupied. However, today the matter has been argued. The prosecution story as enunciated in the F.I.R. Is that on 2-3-2002 at about 8-00 p.m. Complainant Abdul Rauf set the law into motion by lodging F.I.R. Stating therein that on 4-2-2002 at about 8-20 p.m. While he was standing opposite Yousafi Masjid, near Dhobi Ghat, Karachi one Rhalid (applicant herein) with whom he had money transaction, came and asked him about the return of his money and upon showing inability of the complainant to return the money for the time being, the applicant caught hold of him with collar and started beating him with fists and kicks. It is further disclosed in the F.I.R.
3. That in the meantime, another companion of the applicant came and both the culprits, in presence of one Rehmatullah, Shopkeeper and other mohallah people, beat him and during such beating he received injuries at his lips and nose and also received injuries on other parts of the body. Accordingly, in view of Medical Certificate bearing No.515 of 2002 F.I.R. Under scc ion 335, P. P .0 . (Itlaf-e-Salahiyat-e-Udv,) was registered.
4. ' The investigation followed and in due course the case of the applicant alongwith co-accused was sent up to stand trial in the Court of law.
5. ' I have heard Messrs Nooruddin Sarki and Nizamuddin Memon, learned counsel appearing for the applicant. Mr. Sardaruddin, learned counsel appearing on behalf of the State and Mr. Mehmood A.
6. Qureshi, Advocate for the private complainant.
7. ' It has been contended by the learned counsel for the applicant that the case against the applicant is false who has been involved due to enmity and malice. It has also been contended that there is delay in lodging the F.I.R. Inasmuch as the incident took place on 4-2-2002 whereas the F.I.R. Was lodged on 2-3-2002. It has, further, been contended that the story as narrated in the F.I.R. Seems to be an improbable and false one based on mala fide and ulterior motive on the part of the complainant and police and since admittedly there is money transaction between the applicant and the complainant, this case has been managed in collusion with the police. It has, also, been contended that applicant is a respectable person and if he is arrested by the police, he shall be insulted, humiliated and tortured by the police. Learned counsel has relied upon the cases of Muhammad Ramzan v. Zafarullah and another 1986 SCM R 1380 and Rana Phool Muhammad Khan and others v. The State 1975 SCM R 137 in support of his contentions.
8. ' Learned counsel for the State has opposed the grant of bail on the ground that not only the name of the applicant is mentioned in the F.I.R. But a specific role has been assigned to him. Section 335, P.P.C., with which the applicant has been charged, provides punishment up to 10 years in addition to `Arsh' and therefor; provisions of section 497(1), Cr.P.C., being prohibitory clause apply to the instant case, hence the applicant is not entitled to the " concession of grant of bail before arrest.
9. ' The learned counsel appearing on behalf of the private complainant, opposing the grant of this application for bail before arrest, has contended that on the eventful day the complainant approached the Police Station, where his complaint was recorded in Roznamcha bearing Entry No.54 and he was given medical letter for his medical check-up and upon issuance of Medical Certificate showing the injuries within the definition of Iltaf-e-Salahiyat-e-Udw, further statement of the complainant was recorded whereafter the F.I.R. Was registered and therefore, the intervening period between day of incident and day of report cannot be called as delay in lodging the F.I.R.
10. Moreover, the contents of the F.I.R. Have fully been corroborated by two eye-witnesses namely Rehmatullah and Abdul Wahid.
11. ' I have given my anxious consideration to the arguments of the respective parties and perused the record.
12. ' The F.I.R. Not only shows that name of the applicant but a specific role has been assigned to the applicant. Section 335, P.P.C., with which the applicant has been charged, provides punishment up to 10 years in addition to `Arsh' and therefore, provisions of section 497(1), Cr.P.C., being covered by M. (sic) Prohibitory clause apply to the instant case. Moreover, contents of Medical Certificate reveal the following three injuries on the face of complainant:--
(1) lacerated wound on inner surface of upper lip with c/o pain in upper teeth;
(2) diffuse swelling on nose with tenderness of o/exam., slight tenderness seen; and
(3) diffuse swelling on lower lip with shakiness of teeth c/o pain.
13. ' However, final Medical Certificate shows that Injury No.2 was declared as other hurts' whereas Injury No.3 as opined by Dental Surgeon, is stated to be shakiness and tenderness with bleeding for periodontal pockets of tooth and corresponding injury was due to trauma and there is partial dislocation of teeth and therefore, this injury was declared to be permanent damage and Iltaf-e- Salahiyat-eUdw i.e. Tooth for tooth.
14. ' In the light of the above discussion, I am not inclined to confirm the interim bail granted to applicant Muhammad Khalid and therefore, dismiss this application for pre-arrest bail.
15. ' Cr. B.A. No.453 of 2002 stand+. Disposed of.
16. ' Application for Pre-arrest