1998 P Cr (PLP)

Burhan Moazzam Malik for Respondent No.2. Badar Munir for the State. On the application of Raze Mustafa petitioner case F.I.R. No.23 was registered with Police Station Khurrianwala, District Faisalabad on 16-1-1997 under section 337-F(ii)/337-L(ii)/34, P.P.C. for causing injuries to Shahid Mahmood brother of the petitioner against Sarwar Khan respondent No.2 and Muhammad Latif respondent No.3. It was alleged that respondent Sarwar Khan while arming himself with dagger inflicted injuries to Shahid Mahmood on his right tipper arm, left 'elbow, left arm, at the back and right thigh. The other accused was empty-handed and he facilitated infliction of injuries to Shahid Mahmood. The injured was medically examined oil the same day i.e. 16-1-1997 at 11-55 a.m. According to the medico-legal report lie received five incised wounds, Injury No.4 has been described to be incised wound back of left side of abdomen 2-1/2 c.m. x 3 c.m. entering the abdominal cavity. Initially as observed above section 337-F(ii)/337-L(ii) were applied. The respondent No.2 Sarwar Khan was arrested and after completion of-his physical remand he was sent to judicial lock-up. He moved application for grant of bail after arrest which wits accepted considering that section 337-F(ii)/337-L(ii) did not fall within the prohibitory clause of section 497, Cr.P.C. During the investigation when the facts were probed into it was found that section 337-D, P.P.C. was applicable which is punishable up to ten years of rigorous imprisonment alongwith Arsh etc. The respondent was, therefore intended to be arrested by the police because lie had not been admitted .to bail for offence under that section. He moved an application for pre-arrest bail which was allowed, by the learned Additional Sessions Judge, Faisalabad holding that section X37-D, R.P.C. had not been mentioned in the F.I.R. which' was added subsequently, therefore, the same according to him, had been done with a mala fide intention.

2. Through the present application cancellation' of bail granted to the respondent has been sought on the ground that according to the allegations in the F.I.R. statement made by the injured P.W. Shahid Mahmood and medico-legal report, section 337-D, P.P.C. was fully attracted but erroneously or inadvertently the seine was not applied and F.I.R. was recorded under section 337-F(ii)/337-L(ii)/34, P.P.C., which do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. If an offence falls within the prohibitory clause bail can be allowed only if it is shown to the Court that no reasonable grounds exist to believe that an offence falling within that section has not been committed. The learned Additional Sessions Judge has erred in h6lding that section 337-D, P.P.C. was added subsequently with a mala fide intention.

3. The learned counsel appearing on behalf of the accused respondent has contested the application on the ground that respondent was arrested and was subsequently bailed out, therefore, his subsequent arrest under section 337-D, P.P.C. was tainted with mala fide intention, therefore, the order granting him bail by the learned Additional Sessions Judge in anticipation of his arrest was unexceptionable and did not call for interference. He has also argued that grounds for cancellation of bail arty different from the grounds applicable to the grant of bail. It is further added that the challan has been submitted, therefore, it is not proper stage to withdraw the concession extended to his client.

4. I have heard the arguments addressed by the learned counsel for the parties at length. It has not been denied by the learned counsel for the accused respondent that Shahid Mahmood received five injuries and lie was examined on the same day i.e. 16-1-1997. It has also not been controverted that on the basis of injury No.4 section 337-D, P.P.C. is applicable which is punishable up to ten year' R.I. its such falls within tile prohibitory clause. His main stress has been oil the point that, the respondent was arrested and had been allowed bail therefore, the same may not be cancelled. The learned counsel has lost sight of the fact that for grant or refusal of bail the Court has to take into consideration the allegations levelled in the F.I.R. and thereafter, to see what offence would be made, out by taking into account the entire material on the file. According to the allegations made in the F.I.R. the respondent has inflicted five', injuries and one of them has been caused on the abdomen which is a vital part and is covered by the definition contained in section 337-C, P.P.C. The same is reproduced:-- "337-C.Whoever causes Jurh in which the injury extends to the body cavity of the trunk, is said to cause Jaifah." Punishment for Jaifah has been prescribed in section 337-D which is liable to Arsh which shall be one-third of the, Diyat and may also be punished with imprisonment for a term which may extend to ten years as Tazir. Under section 497, Cr.P.C. no person shall be released on bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. In the instant case on the basis of allegations made in the F.I.R. coupled with the statement made by Shahid Mahmood injured P.W. under section 161, Cr.P.C. supported by medico-legal report, alleged offence committed by the respondent is punishable under section 337-D, P.P.C. Unfortunately, the learned Courts below did not even advert to this aspect of the case. Description of sections by the police officials in third column of the F.I.R. is based on the tentative assessment of the police and cannot always be treated as conclusive or final. The Court while granting bail has to look into the entire material and therefrom has to assess as to which offence will be constituted. If in the F.I.R. or for that matter the police challan in the relevant column erroneous section of the penal statute is mentioned, may be on account of some inefficiency, inadvertence or with some mala fide intention, that does not mean that the Court would follow the same and would pass order by accepting the same. In case on the basis of the material different offence is spelt out or the allegation is covered by some section of the law other than that applied by the police, the Court is under legal obligation to look into the relevant available material and then act accordingly. In the present case, the learned Magistrate as well as the learned Additional Sessions Judge seem to have been misguided only by the tact that the sections mentioned in the this'd column of the F.I.R. were not hit by the prohibitory clause, therefore, concession of bail was extended. It is true that liberty of the individual is an extremely important right but if an individual has allegedly committed offence wherein tinder section 497, Cr.P.C. the bail cannot be allowed, the same would be allowed only if there appears no reasonable grounds for believing that he has not been guilty of offence punishable for ten years' rigorous imprisonment. '

5. Keeping in view the aforesaid material available in the present case it cannel be held at this stage that no such reasonable grounds are available. The learned Additional Sessions Judge has, therefore, erred in admitting the respondent No.2 to bail.

6. Great emphasis has been laid on the point that section 337-D, P.P.C. has been added with mala fide intention. The contention is devoid of any force. If the police omitted to mention or apply section which was prima facie applicable then no mala fide can be imputed at least against the accused persons.

7. The upshot of the entire discussion is that the learned Courts below have erred in law in granting bail to respondent Sarwar Khan. This application, filed by the complainant is allowed and the bail granted to respondent No.2 is hereby cancelled.

8. It will, however, be open to the learned trial Court or the learned Court of Session to consider the question of bail if during the course of trial the accused-respondent is found entitled to the grant of bail. N.hI.Q./R-35/1.?????????? ??????????????????????????????????????????????????????????????????????????????????? Bail cancelled.