1997 PLP 23 (MLD)

(b) Criminal Procedure Code (V of 1898)

S. 497

Bail

Offence not falling within the prohibitory clause of S. 497, Cr.P.C.

Grant of bail in a case not falling within the prohibitory clause of S.497(1), Cr.P.C. is a rule and its rejection is an exception. Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref. Ch. Faqir Muhammad for Petitioner. Sh. Muhammad Hanif for the State. Date of hearing: 27th September, 1995. Muhammad Iqbal complainant got recorded F.I.R. No. 82 dated 1-5-1995 at Police Station Qadirpur Rawan, District Multan under section 324/ 337-A(ii), P.P.C. with the allegation that on 30-4-1995 at 1-00 p.m. his son-in- law Mazhar Abbas was going back from Qadirpur Rawan on a motorcycle to his own house. He (complainant) alongwith Muhammad Tufail and Munir Khan was following the aforesaid Mazhar Abbas on one motorcycle near Suigas pipeline on the road. There emerged Muhammad Hashim petitioner-accused armed with pistol and Abbas accused (since declared innocent) armed with a Sota. Mazhar Abbas fell from the motorcycle in a ' Khal' . Muhammad Hashim petitioner- accused fired at him which missed/.did not work. Thereafter Muhammad Hashim petitioner-accused gave 'butt' blows on the head of Mazhar Abbas. The co accused Abbas gave Dang blows on the left leg of the victim.

2. During the investigation Abbas co-accused has been declared as innocent. The bail plea of Muhammad Hashim has been rejected by the lower Court. Hence this petition with the same desire.

3. I have heard the learned counsel for the petitioner-accused as well as the learned counsel for the State and gone through the record before me. I am in full agreement with the learned counsel for the petitioner who canvassed before me that the attraction of section 324, P.P.C. would be a question of further inquiry in view of the fact that Mazhar Abbas victim was injured during the occurrence and the Medical Officer has opined that the injury is Shajjah-e-Mudihah, Legally in case of proof the conviction shall have to be recorded under section 337-A(ii), A P.P.C. or for another offence of lesser punishment. This being the position this bail application shall have to be disposed of keeping in view the prima facie attraction of section 337-A(ii), P.P.C. Learned counsel for the petitioner has relied on Allah Rakha alias Bodi and another v. The State and another (1993 SCMR 1994) and argued the (sic) learned charged therein for having caused Shajjah-i-Mudihah (exposure of any bone of the victim without causing fracture) was admitted to bail on the ground that the offence does not fall within the prohibitory clause. It has also been commanded in the dictum enunciated in the ruling published as Tariq Bashir and 5 others v. The State (PL.D 1995 Supreme Court 34) that in an offence not failing within the prohibitory clause the acceptance of bail is a rule and its rejection is an exception. Keeping in view the aforesaid yardstick at my query learned counsel for the State has not been able to rely/refer to any ruling of the Supreme Court of Pakistan making me to express a contrary view to that already expressed above. In the circumstances I agree with the learned counsel for the petitioner that it is a fit case for admitting Muhammad Hashim petitioner to bail. I, therefore, accept this application and admit Muhammad Hashim petitioner to bail in the sum of Rs.15,000 (Rupees fifteen thousand only) with one surety in the like amount to the satisfaction of the trial court. Copy Dasti subject to payment of usual charges, if desired. N.H.Q./M-2589/L Bail granted.