Bhai Khan vs State etc.

Crl. Misc. No.4410-B of 2019 1

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Crl. Misc. No.4410-B/2019

Bhai Khan Vs. The State & another.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where proceeding proceeding. necessary.

13.09.2019 Malik Muhammad Siddique Kamboh, Advocate for the petitioner.

Mr. Mujahid Bashir, Advocate for the complainant/respondent No.2..

Mr. Sarfraz Khan Khichi, Deputy Prosecutor General with Muhammad Asif, ASI.

Through the petition filed under section 497 Cr.P.C., the petitioner namely Bhai Khan is seeking post-arrest bail in the case FIR No.264 of 2019, dated 21.06.2019, registered at Police Station Sinawan District Muzaffargarh, in respect of offences under sections 337-F(vi),337-F(i), 337-L(2) and 34 PPC..

2.The allegation as against the petitioner, as culled from the evidentiary material produced before the Court, is that the petitioner namely Bhai Khan gave three blows with a sota hitting the left arm, left hand and below left ear of the injured/complainant of the case, namely Zafar Ali

3.I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4.It has been noticed by this Court that in the FIR it has been recorded that the occurrence took place on 31.05.2019 however, the injured/complainant of the case, namely Zafar Ali, was examined by the Medical Officer on 03.06.2019, after a delay of three days. There is no reasonable explanation as to why this delay occurred in the examination of the injured/complainant of the case, namely Zafar Ali. Out of the injuries attributed to the petitioner, injury No.1, suffered by the injured/complainant of the

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case, namely Zafar Ali on his left hand, was declared as “Jurh Ghayar-Jaifah Munaqqilah”, made punishable under 337-F(vi) and punishable for a term which may extend to seven years as tazir. A tentative perusal of the record shows that, prima facie, there is no sufficient material available on the record to believe that the petitioner has committed an offence, which falls under the prohibitory clause of section 497 of the Cr.P.C. Learned counsel appearing on behalf of the injured/complainant of the case, namely Zafar Ali has submitted that the contents of the FIR reveals that the petitioner had committed an offence under section 324 PPC. Section 324 of the PPC. deals with an attempt to commit qatl-i-amd. An attempt as an indictable crime means an intentional act with a view to attain a definite end but which is not achieved because of circumstance independent of the will of the offender who makes the attempt. In the instant case, the intention of the petitioner to kill the complainant is not available, particularly when, after sustaining a injury, the complainant fell down and was entirely at the mercy of accused persons, but the accused persons, despite having weapons, continued to cause injuries on the non vital organs of the injured. Applicability of section 324 of the P.P.C. has to be adjudged in the background of number of the accused persons, the weapons carried by them and the opportunity available to them to complete the intended offence. Receipt of injuries on the leg and arm by the complainant has indicated that accused had no intention to kill him; otherwise he would have not chosen his leg and arm to inflict injuries. The applicability of section 324 of the P.P.C. is yet to be determined during course of the trial and, at best, the case of the petitioner seems to be covered by the provisions of section 337-F(vi) of the P.P.C., which does not fall within the prohibitory clause of section 497 of the Cr.P.C. Furthermore the co-accused of the petitioner namely Lal Sher and Muhammad Arif, who were also attributed role of beating the injured/complainant of the case, namely Zafar Ali, were declared innocent during the investigation of the case and the said investigation has not been challenged by the injured/complainant of the case, namely Zafar Ali. In the given

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circumstances, the case of petitioner falls within the ambit of cases where grant of bail is a rule. Reliance is placed on the case of JAN MUHAMMAD versus Haji NOOR JAMAL(1998 SCMR 500) wherein it has been held as under

“In light of the provisions contained in section 324, P.P.C. read with section 337, P.P.C., we agree with the submissions made by the learned counsel for the petitioner. We agree with him that present case is not covered by the prohibition contained in subsection (1) of section 497, Cr.P.C”

Besides, no exceptional circumstances appear in this case to withhold bail to the petitioner. The petitioner is behind the bars since his arrest on 22.06.2019 and the investigation has been finalized, and the allegations against him are yet to be proved through evidence in the court, as such, further detention of the petitioner in this case at this stage would not serve any fruitful purpose. Admittedly, the petitioner is a previous non-convict. The trial has not seen any fruitful progress as yet. It is settled that while dealing with the question of bail, court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of “Tariq Bashir and 5 others v. The State” reported as PLD 1995 SC 34, wherein it has been mentioned that Section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with death, imprisonment of life or imprisonment for ten years (2) offences punishable for imprisonment of less than ten years, the principle to be deduced from this provision of law is that 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)Whether there is likelihood of abscondence of the accused;

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

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

(d)Where the accused is a previous convict.

This principle has also been reiterated in the case of “ Zafar Iqbal v. Muhammad Anwar and others” (2009 SCMR 1488), Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708). Grant of bail is a right and refusal is an exception in such like cases as held by the august Supreme Court of Pakistan in the case of “Imtiaz Ahmad & another Vs. The State” (PLD 1997 SC Page 545) held as under:

“Even in cases where a person is accused of non bailable offence and the case does not fall within the prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither death nor imprisonment for life nor 10 years, the grant of bail in such cases is a rule and refusal an exception.”

The prosecution has not produced any material to prove extraordinary and exceptional circumstances to refuse bail to the petitioner.

5.For the foregoing reasons the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial court.

6.Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.

(Sadiq Mahmud Khurram) Judge.

Raheel

Approved for Reporting Judge