2013 P Cr (PLP)

SARDAR TARIQ MASOOD, J.

Ali Athar petitioner seeks his post-arrest bail in case F.I.R. No.513 of 2006 dated 31-10-2006 under sections 337-A(i), A(iii), L(2)/34, P.P.C. registered at Police Station City Chiniot, District Chiniot.

2. Briefly the prosecution case mentioned in the F.I.R. is that the petitioner launched an attack upon the complainant Syed Khurshid-ul-Hassan Zaidi, outside the Court and caused injuries to him. It is alleged that the petitioner gave fists and kicks blows to the complainant and also struck his head on the nose of the complainant.

3. At the very outset, learned counsel for the petitioner contends that pre-arrest bail petition of the petitioner was dismissed by this Court on 2-2-2007 but rejection of pre-arrest bail is not a bar for grant of bail after arrest. Further contends that the petitioner was arrested in this case on 15-1-2012 and after his arrest he was released on bail the learned Ilaqa Magistrate, Chiniot on 18-1-2012; that after three months of grant of said bail, complainant filed a petition for cancellation of bail of the petitioner on 6-3-2012 and bail granted to the petitioner by the Ilaqa Magistrate was cancelled on 24-4-2012; that the petitioner had not concealed any facts from the learned Ilaqa Magistrate and categorically stated that said application was the first petition for post-arrest bail; that even the prosecution has not pointed out the fact of rejection of earlier pre-arrest bail application of the petitioner; that admittedly from the F.I.R. it is quite clear that there was enmity and litigation was going on between the parties; that the petitioner is previous non-convict, hence, he cannot be convicted under Ta'zir due to the bar under section 337-N(2), P.P.C.; that primary punishment of offence under section 337-A(iii), P.P.C. is 10 % of the Diyat amount.

4. On the other hand, learned DPG for the State assisted by learned counsel for the complainant has opposed this petition while arguing that the petitioner remained absconder for more than six years; that nasal bone of the complainant was fractured as petitioner struck his head on the nose of the complainant; that the abscondence of the petitioner was noticeable as earlier his pre-arrest bail was dismissed in the year, 2007. Learned DPG after going through the record contend that the petitioner is previously non-convict. However, he was also involved in another case i.e. F.I.R. No.169 of 2001 under section 324, P.P.C.

5. Heard. Record perused.

6. Although, earlier pre-arrest bail of the petitioner was declined by this Court on 2-2-2007 in Criminal Miscellaneous No.805-B of 2007 but rejection of the pre-arrest bail by itself is not a bar for the grant of post-arrest bail because considerations for grant of pre-arrest bail and for the grant of post-arrest bail are totally different as held in Dawood v. Muhammad Yasin (PLD 1982 SC 227). Admittedly, the petitioner was arrested in January, 2012 and on, 18-1-2012 he was released on bail after arrest. After three months of the said order, the complainant filed an application for cancellation of bail of the petition on 6-3-2012 and learned Additional Sessions Judge on 24-4-2012 cancelled the bail of the petitioner on the ground that petitioner concealed certain facts from the Court and also he remained absconder for six years. The certificate in the petition of post-arrest bail indicates that it is specifically mentioned that it was the first post arrest bail application. Admittedly, prior to that no petition for post-arrest bail was filed by the petitioner. Although, the petitioner had not mentioned specifically that his pre-arrest bail was declined by this Court or any other Court but in paragraph 5 he mentioned that earlier he obtained pre-arrest bail and also mentioned that he has annexed copy of said bail petition. The order of learned Magistrate dated 18-1-2012 also indicates that even the complainant party had not disclosed the said facts before the Magistrate. Even bail cannot be withheld on such technicality, when otherwise accused became entitled for the concession of bail. So far abscondene of the petitioner is concerned, it is almost settled that bail cannot be withheld on the ground that accused remained fugitive from law, if otherwise he became entitled for the concession of bail. It is also a circumstance that strong and exceptional circumstances are required to cancel the bail already granted to the accused by a competent Court of law e.g. where the order granting bail was patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. These grounds were not available with the learned Additional Sessions Judge when the bail 'of the petitioner was cancelled.

7. So far merits of the case are concerned, admittedly petitioner was empty-handed and he allegedly gave fists and kicks blows to the complainant and he had not used any lethal weapon. All the other injuries are simple in nature. However, one injury on the nose was declared as Shajjah-i-Hashimah falling under section 337-A(iii), P.P.C. which primarily is punishable with Arsh which shall be 10 % of the Diyat and the petitioner can also be convicted for a term which may extend to 10-years as Ta'zir. The punishment of Arsh is mandatory and the imprisonment for 10 years as Tazir is discretionary. Section 337-N(2), P.P.C. provides that notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may having regard to the kind of hurt, in addition to the payment of Arsh, award Tazir to an offender who is previously 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. The bare reading of the above stated section indicates that the learned trial Court will award punishment of arsh, daman or diyat in case of hurt and award of sentence of Ta'zir is only possible, where it is proved that accused is previously 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. The said facts can only be determined by the trial Court after recording the evidence. Therefore, the accused cannot be refused bail at the initial stage on the ground that the offence involving hurt also entail punishment of imprisonment as Ta'zir. The involvement of the petitioner in one case of same nature without any conviction by itself is not sufficient to liable him as hardened, habitual, or hardened criminal. On query, learned DPG for the State after going through the record states that the petitioner is previously non-convict and have no previous criminal record. Subsection (2) of section 337-N, P.P.C. is an over-riding effect on other sections providing punishment for hurt. At present, there is neither any allegation nor any evidence on the record to hold that the petitioner is either previously convicted, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour. Due to the above mentioned circumstances, presently the case of the petitioner calls for further inquiry. Petitioner was behind the bars prior to the date when his bail was cancelled by learned Additional Sessions Judge vide Order dated 24-4-2012 and since then he is behind the bars. Further incarceration of the petitioner would not serve any useful purpose and he cannot be kept in jail for an indefinite period. As already discussed, if an accused has a good case for bail on merits, then mere his abscondence would not come in the way while granting him bail.

8. Consequently, this petition is allowed and Ali Athar petitioner is enlarged on bail subject to his depositing of requisite amount of arsh as provided under section 337-A(iii), P.P.C. and Daman for the remaining injuries (to be determined tentatively by the learned trial Court) with learned trial Court and furnishing bail bonds in the sum of Rs.1,00,000 (Rs. one lac only) with two sureties in the like amount to the satisfaction of learned trial Court. MWA/A-129/L Bail allowed.