2007 PLP 1777 (YLR)

TARIQ SHAMIM, J.

The petitioner seeks his pre-arrest bail in case F.I.R. No.274 of 2006, dated 2-7-2006, for offences under sections 337-A(i), 337-A(ii), 337-F(i)/34 and 109, P.P.C. registered at Police Station Nowshera Virkan, District Gujranwala.

2. Brief facts of the case are that the petitioner along with other co-accused armed with different weapons is alleged to have caused injury on the person of the complainant.

3. Learned counsel for the petitioner contended that there was a delay in lodging of the F.I.R. which had not been explained; that civil litigation was pending between the parties and on account of the said litigation, the petitioner had been falsely involved in the case due to mala fide of the complainant; that no specific role had been assigned to the petitioner in the F.I.R.; that the ocular account was in conflict with the medical evidence; that during the course of the investigation, the petitioner was found not to be armed with any weapon although he was present at the place of occurrence; that the offences mentioned in the F.I.R. did not fall within the prohibitory clause of section 497, Cr.P.C., hence the petitioner was entitled to the concession of pre-arrest bail.

4. On the other hand, learned Assistant Advocate-General appearing on behalf of the State contended that the petitioner was nominated in the F.I.R. and a specific role had been attributed to him and that during the investigation, the petitioner was found to be present at the spot and was vicariously liable for the commission of the offences mentioned in the F.I.R.; that the challan had been submitted and the trial was likely to commence in the near future, hence the petitioner was not entitled to the extraordinary concession of pre-arrest bail.

5. I have heard he learned counsel for the parties and perused the record.

6. Admittedly, there is a delay of about six months in lodging of the F.I.R., which has not been explained. There is good possibility of the petitioner being falsely involved in the case as the complainant had ample time for consultation. Further, civil litigation is pending between the parties and false involvement of the petitioner on account of mala fides of the complainant cannot be ruled out. During the course of investigation, it was found by he Investigating Officer that neither the petitioner was armed with any weapon nor he inflicted any injury on the complainant, although he was present at the place of the occurrence. Whether the petitioner is vicariously liable for the acts of his co-accused can only be determined at the trial after recording of evidence and not at bail stage. Since the investigation reveals that the petitioner was not armed with any weapon, as such the question of recovery of any weapon of offence from the petitioner does not arise. The eye-witness account is in conflict with the medical evidence as no incised wounds are shown in the medico-legal report. The offence under section 337-A(i), P.P.C. is punishable with a maximum sentence of two years and the offence under section 337-A(ii), P.P.C., is punishable with maximum sentence of five years, hence the offences do not fall within the prohibitory clause of section 497, Cr.P.C. The dictum laid down by the Hon'ble Supreme Court, in Tariq Bashir's case (PLD 1995 SC 34) is fully attracted to the case of the petitioner as in cases not punishable with death, imprisonment of life or ten years, grant of bail is a rule and refusal is an exception. Even otherwise, the Investigating Officer states that the investigation is complete, the challan has been submitted in the Court and the petitioner is not required for any investigation or for recovery of any weapon of offence, hence in view of the statement of the Investigating Officer, sending the petitioner to jail at this stage would not serve any useful purpose.

7. For what has been discussed above, a case for pre-arrest bail has been made out. Resultantly, the ad interim pre-arrest bail granted to the petitioner vide order dated 9-8-2006 is confirmed subject to his furnishing fresh bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. H.B.T./M-210/L Bail confirmed.