--S. 497--Pakistan Penal Code, (XLV of 1860)--Post arrest bail--Bail does not mean acquittal of accused but only change of custody-

PLJ 2022 Cr.C. 1062

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 337-F(v)/337-F(i)/337-A(i)--Post arrest bail--Grant of--FIR was lodged with the delay of 03-days--Possibility of the due deliberation and consultation could not be ruled out--Offences do not fall within the prohibitory clause of Section 497 Cr.P.C.--Mere commencement of trial is no ground for refusal of bail if an accused has made out a case of further inquiry--Bail does not mean acquittal of accused but only change of custody--Petitioner is behind the bar since his arrest, he is no more required by the police because investigation in this case is complete. He is also previous non-convict and non record holder--Bail allowed.

                                                 [Pp. 1063, 1064 & 1065] A, B, C, D & E

2021 SCMR 130; PLD 1995 SC 34; 1995 PCr.L.J 639; PLD 2017 SC 733; 2020 SCMR 717; 2020 SCMR 971; 2014 SCMR 12; 2014 SCMR 27; 2008 SCMR 807 ref.

Hafiz Muhammad Abdul Rasheed Rashid, Advocate for Petitioner.

Mr. Javed Iqbal Bhaaya, ADPP for State.

Mr. Muhammad Aslam Misson, Advocate for Complainant.

Date of hearing: 4.1.2022.

PLJ 2022 Cr.C. 1062
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad Tariq Nadeem, J.
IMTIAZ ALI--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 4323-B of 2021, decided on 4.1.2022.

Order

Through this petition, the petitioner Imtiaz Ali, craves post-arrest bail in case FIR No. 344, dated 08.05.2021, in respect of offences under Sections 337-F(v), 337-F(i) & 337-A(i), PPC registered at Police Station, City Sadiqabad, District Rahim Yar Khan.

2. As per crime report, on 05.05.2021 at about 06:00 a.m, the petitioner along with his co-accused while armed with their respective weapons, attacked upon the complainant party. Petitioner has been assigned the role of causing hatchet blows on left calf and both sides of complainant's waist. He also inflicted hatchet blows on the elbow and wrist of right hand of Faisal Wasim PW. Hence, this FIR.

3. Heard. Record perused.

4. It is noticed by this Court that the occurrence took place on 05.05.2021 whereas the FIR was lodged on 08.05.2021 i.e with the delay of 03 days without giving any sufficient explanation, therefore, possibility of due deliberation and consultation could not be ruled out. Reliance is placed upon “Khair Muhammad and another vs. The State through P.G.Punjab and other” (2021 SCMR 130).

5. After hearing learned counsel for the parties and going through the record, I have noted that the petitioner has been assigned the role of causing hatchet blow at the left calf of complainant which injury has been declared by the concerned Medical Officer as Ghayr-Jaifah-Hashimah, punishable u/s 337-F(v), PPC which carries punishment upto 5 years falling outside the prohibitory clause of Section 497, Cr.P.C. whereas other injuries attributed to the petitioner are Shajjah-i-Khafifah and Ghayr-Jaifah-Damiyah, falling under Sections 337-A(i) and 337-F(i), PPC which are bailable offences.

It is settled proposition of law that if the offences do not fall within the prohibitory clause of Section 497, Cr.P.C. then basic rule is bail not jail and refusal an exception. No exceptional circumstances are available in the present case as the petitioner has no previous conviction in such like cases. Even otherwise, liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973. Reliance is placed upon the case titled as “Tariq Bashir & 5 others v. The State" (PLD 1995 SC 34) wherein it has been held as under:-

“It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example.

(a)      where there is likelihood of abscondence of the accused;

(b)      where there is apprehension of the accused tampering with the prosecution evidence;

(c)      where there is danger of the offence being repeated if the accused is released on bail; and

(d)      where the accused is a previous convict.”

6. I have noticed that main allegation against the petitioner is that he caused hatchet blow on the left shin of Ghulam Yasin, complainant and as per Radiological opinion his left fibula tibia was fractured. Despite the fact that tibia bone of the complainant has been fractured with dislocation but refusing of bail would amount to pre-mature punishment to the petitioner before conclusion of trial. Reference can be obtained from the judicial archive of case law titled as “Abdul Sattar v. The State “(1995 PCr.LJ 639)”.

Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of “Muhammad Tanveer vs. The State and another” (PLD 2017 SC 733), “Ramzan alias Jani vs. The State” (2020 SCMR 717) and “Muhammad Faisal vs. The State and another” (2020 SCMR 971).

7. Learned Law Officer assisted by the learned counsel for the complainant has further argued with vehemence that a report under Section 173, Cr.P.C. has already been submitted before the learned trial Court and trial is to commence in near future, therefore, petitioner is not entitled for the concession of bail. I am not in agreement with the contention of learned Law officer because it is also settled proposition of law that mere commencement of trial is no ground for refusal of bail if an accused has made out a case of further inquiry. My view is fortified by the judgments of Hon'ble Supreme Court in cases titled as “Syed Khalid Hussain Shah vs. The State and another” (2014 SCMR 12) and “Nisar Ahmad vs. The State and others” (2014 SCMR 27).

8. Mere heinousness of offence could not impede release of accused on bail if otherwise his guilt calls for further probe, similarly bail could not be withheld as a strategy for punishment.

Moreover, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only

change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance is placed on case reported as “Haji Muhammad Nazir v. The State” (2008 SCMR 807).

9. The petitioner is behind the bars since his arrest, he is no more required by the police because investigation in this case is complete. He is also previous non-convict and non record holder. His further incarceration would not serve any useful purpose.

10. The epitome of supra mentioned discussion is that the petitioner has succeeded in making out the case for grant of after arrest bail, resultantly, this petition is accepted and the petitioner Imtiaz Ali is allowed post- arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

11. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.

(K.Q.B.)          Bail allowed