2017 PLP 251 (YLRN)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. the petitioners have sought pre-arrest bail in case FIR No. 665/16, dated 24.11.2016 registered at Police Station Sadar Sargodha in respect of offences under sections 337A(ii), 337F(i), 337F(iv), 34, 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 petitioners are named in FIR, yet the fact remains that there is an unexplained delay of seven days in registration of FIR, which prima facie shows that the FIR has been got registered after due deliberation and consultation. In FIR, Abdul Qayyum petitioner has been assigned the role of causing injuries on head and right little finder of Mst. Tanveer Bibi injured, but admittedly Mst. Tanveer Bibi injured was summoned thrice by the Standing Medical Board, constituted on the application of Abdul Shakoor under the order dated 28.11.2016 of learned Magistrate Section-30 Sargodha for her medical re-examination but she did not appear before the Standing Medical Board. Adverting to the case against Abdul Shakoor petitioner, he has been assigned the role of causing injuries on left calf and head of the complainant. It has been noticed by this Court that the injury on left calf of the complainant falls under section 337F(i), P.P.C. which is bailable offence, whereas the injury on head of complainant does not reflect that bone is exposed, so the question as to whether provisions of offence under section 337A(i), P.P.C., which is bailable in nature, are attracted instead of section 337A(ii), P.P.C. shall be determined by the learned trial court at an appropriate stage. Admittedly the petitioners are previous non-convict; neither they are hardened, dangerous, desperate criminals nor have committed the alleged offence on the pretext of honour, therefore, 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 17.11.2016. In such situation, recovery of weapons of offence after the lapse of more than two and half months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349. It is settled law that the questions of sharing common intention and vicarious liability of the petitioners in the commission of alleged occurrence shall be determined by 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 10.01.2017 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. WA/A-42/L Bail confirmed.