2017 PLP 991 (YLR)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. the petitioners have sought pre-arrest bail in case FIR No.160/16, dated 27.04.2016 registered at Police Station Ladhewala Warraich, District Gujranwala in respect of offences under sections 337A(i), 337A(ii), 337F(i), 337L(2), 452, 148, 149, P.P.C.

2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail before arrest and only tentative assessment is required at this stage. It has been noticed by this Court that although the petitioners are named in FIR, yet the fact remains that there is a delay of five days in registration of the FIR, which has not been explained therein, which prima facie reflects that the FIR has been got registered after due deliberation and consultation. No specific role in the commission or alleged occurrence has been attributed to the petitioners and only general allegation of giving beating to Fatima Bibi, Shabana Bibi, Sumera Bibi and Sajawal injured is leveled against them. The medico legal certificates of Shaukat Ali and Muhammad Dilawar petitioners are available on the file, which prima facie reflect that they also sustained injuries during the incident, but this fact has been suppressed by the complainant in the FIR so the story narrated by the complainant in FIR has become doubtful. In such situation, it is yet to be determined by the learned trial court after recording evidence as to which party is aggressor and which party has been aggressed upon in this case. So far as the question in respect of attraction of offence under section 452, P.P.C. is concerned, the same shall be determined by the learned trial court at an appropriate stage. Even otherwise, it is an admitted position of the case that the petitioners are previous non-convict; neither they are hardened, dangerous, desperate criminals nor they have committed the alleged offence on the pretext of honour, there-fore, section 337N(2), P.P.C. also comes to their rescue, which is reproduced as under:-- 337-N. Cases in which qisas for hurt shall not be enforced:

(2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal (or the offence has been committed by him in the name or on the pretext of honour] Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour. The above quoted provision of law clearly depicts that additional punishment of imprisonment as ta'zir can only be awarded to a person, who is previous convict or hardened, dangerous, desperate criminal or he has committed the offence on the pretext of honour, but all these elements are missing in this case. The person of the petitioners cannot be handed over to police only for the purpose of effecting recovery, which otherwise has lost relevancy with the passage of time as occurrence in this case took place on 22.04.2016. In such situation, recovery of weapons of offence after the elapse of about five months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349. It is settled law that vicarious liability of the petitioners in the commission of alleged occurrence shall be determined by the learned trial court after recording evidence. The petitioners have already joined the investigation, which is complete to their extent, therefore, no useful purpose would be served by sending them behind the bars so as to enable them to come out of jail on post-arrest bail after few days.

3. For what has been discussed above, keeping in view the provisions of section 337N(2), P.P.C., this petition is allowed and the ad interim pre-arrest bail already granted to the petitioners vide this Court's order dated 26.08.2016 is hereby confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety in the like amount to the satisfaction of learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. JK/D-5/L Petition accepted.