Isfandyar vs State

2012 Y L R 2853

[Peshawar]

Before Assadullah Khan Chamkani, J

ISFANDYAR---Petitioner

Versus

THE STATE through Additional Advocate General and another---Respondents Criminal Miscellaneous Bail Application No.422-M of 2012, decided on 3rd September, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(ii) & 34---Shajjah-i-m udihah, common intention---Bail, grant of---Further inquiry---Allegation against accused was that he caused injuries to the complainant on his head and other parts of his body---Alleged offence, even if proved, would entail punishment which might extend to five years and might also make accused liable to fine---Grant of bail was a rule and. refusal an exception in case of offences which carried punishment up to ten years or less---Accused was behind bars for about two months and investigation in the case was complete and he was no more required for further investigation---Mere commencement of trial before court or submission of challan before the court was no ground for refusal of bail to the accused, if his case was otherwise one of further inquiry---Accused was released on bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497(2)---Bail---Submission of challan before court---Commencement of trial--- Effect---Mere commencement of trial before court or submission of challan before the Court was no ground for refusal of bail if c a s e of accused was otherwise one of further inquiry within the ambit of S.497(2), Cr.P.C.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muhammad Qayum Khan for Petitioner.

M. Igbal Khan Essa Khel for the State.

Rahman Ali for other Respondents.

Date of hearing: 3rd September, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Isfandyar has applied for bail after he failed to secure his such relief from the courts below, being involved in case F.I.R. No. 237 dated 5-7- 2012 under sections 337-A(ii)/34, P.P.C., registered at Police Station Kalakot, on the charges that he along with his co-accused on 23-6-2012 at 08.00 hours caused injuries to the complainant on his head and other parts of his body.

2.Learned counsel for the petitioner argued that accused/petitioner is innocent and has falsely been involved in the case; that besides the inordinate delay in lodging of the report, as per affidavits submitted by the alleged eye-witnesses, mentioned in the first report, namely Najib Ullah and Fazal Aziz, they have not supported the version of the prosecution, therefore, the case of the petitioner requires further probe into his guilt. He further argued that the petitioner is an old man and is of infirm physique and the offence for which the petitioner is charged also does not fall under the prohibitory clause of section 497, Cr.P.C, therefore, the petitioner deserves to be released him on bail.

3.As against this, learned counsel for complainant and learned State Counsel appearing on behalf of the State argued that the accused/petitioner is directly charged by the complainant with specific role for causing injury on his head and Medico-legal Report and other material available on the file also support the version of the complainant, therefore, at this stage of the 'case, he is not entitled to the concession of bail.

4.Arguments heard and record perused.

5.Without discussing other merits of the case which may prejudice the case of either side, suffice it to say that the offence for which the petitioner is charged, if proved, entailing punishment which may extend to five years and may also liable to fine, and it is now settled that an offence which carries punishment upto ten years or less then the grant of bail is a rule and refusal thereof is an exception. Moreover, the petitioner is behind the bars for about two months and investigation in the case is complete and the petitioner is no more required for further investigation. The learned State Counsel pointed out that as on 31-7-2012 the case was put in court, therefore, the petitioner, at this stage of the case, is not entitled to the concession of bail but his such arguments is not convincing as mere the commencement of trial before the Court or

submission of Challan before the Court is no ground for refusal of bail if case of the accused is otherwise of further inquiry within the ambit of subsection (2) of section 497, Cr.P.C. Reliance in this regard can be placed on the case of "Muhammad Ismail v. Muhammad Rafique and another, PLD 1989 SC 585.

Consequently, this application is accepted and the petitioner is released on bail in case he furnishes bail bonds in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.

MWA/295/P Bail granted.