2018 PLP 167 (YLRN)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. Sardar Muhammad and Riaz petitioners have sought pre-arrest bail in case FIR No.322/2017 dated 05.09.2017 under sections 337-A(iii), 337-A(i), 337-F(vi), 337-L(2), 148, 149, P.P.C., Police Station City Kamalia, District Toba Tek Singh.

2. At the very outset, I feel necessary to mention here that Sardar Muhammad petitioner at Sr. No.1 is not in attendance before this Court today and learned counsel for the petitioners has prayed for dispensation of his personal attendance for today only. In this view of the eventuality, the attendance of Sardar Muhammad petitioner is hereby dispensed with for today only. I have heard the learned counsel for the petitioners, learned District Public Prosecutor and learned counsel for the complainant and have also gone through the record with their able assistance. This is bail before arrest which is an extraordinary remedy and deeper appreciation is not allowed at this stage. It has been noticed by this Court that the case to the extent of Sardar Muhammad petitioner is distinguishable from that against Riaz petitioner, so firstly I would like to discuss the case against Sardar Muhammad petitioner. It has been noticed that Sardar Muhammad petitioner is named in FIR and a specific role of inflicting "sota" blow on the nose of Muhammad Iqbal injured is assigned to him, as a result of which nasal bone of injured was fractured and the injury attributed to Sardar Muhammad petitioner has been declared by the doctor as shajjah-i-hashima falling under section 337-A(iii), P.P.C. The statements of PWs, particularly that of Muhammad Iqbal injured, recorded under section 161 Cr.P.C. are available on record and same are duly supported by the medico legal certificate of the injured, which prima facie connect Sardar Muhammad petitioner with this occurrence. The offence under section 337-A(iii), P.P.C. is non-bailable in nature and falls under the prohibitory clause of section 497, Cr.P.C. During investigation, Sardar Muhammad petitioner has been found involved in this case by the investigating officer and the recovery of weapon of offence is yet to be effected from him. He has failed to point out any mala fide of the complainant or local police for his false implication in the instant case, therefore, he does not deserve the extra ordinary concession of pre-arrest bail. For the foregoing reasons and taking guidance from the case-law reported as "Sarwar Sultan and others v. The State and another" (PLD 1994 SC 133), this Sardar Muhammad petition to the extent of Sardar Muhammad petitioner has got no force, therefore, the same is dismissed to his extent and the ad interim pre-arrest bail already granted to him is also recalled.

3. As far as the case to the extent of Riaz petitioner is concerned, although Riaz petitioner is also named in FIR with the role of inflicting iron rod blow on the wrist of Rasheed Ahmad injured, yet the fact remains that during the course of investigation, mere presence of Riaz petitioner at the spot was found and it has come on the surface of record that neither he was equipped with any weapon nor has taken part in this occurrence and the injury on the forearm of Rasheed Ahmad injured has been inflicted by Nafees-ur-Rehman co-accused who has already been allowed bail before arrest by learned Additional Sessions Judge. Moreover, the medico legal certificate of Rasheed Ahmad injured does not reflect any injury on his wrist. These facts prima facie create doubt in the prosecution story to the extent of Riaz petitioner and it is settled law that the benefit of doubt can be given to the accused even at bail stage. Law is also well settled that the questions of vicarious liability and sharing common intention by the accused shall be determined by learned trial court after recording evidence. Admittedly Riaz petitioner is previous non-convict and never involved in any other case. He has already joined the investigation of the case, which as per investigating officer is complete to his extent and according to the police investigation, he was not armed with any weapon at the time of alleged occurrence, so nothing is to be recovered from him, hence, no useful purpose would be served by sending him behind the bars so as to enable him to come out of jail within few days.

4. For what has been discussed above, false implication of Riaz petitioner by the complainant with mala fide intention and ulterior motive cannot be ruled out of consideration, hence, this petition to the extent of Riaz petitioner is allowed and the ad interim pre-arrest bail already granted to him is hereby confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial court.

5. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. HBT/S-7/L Order accordingl