2017 PLP 30 (YLR)

MUHAMMAD ALAM, J.

This is a bail petition for grant of bail facility to the petitioner in connection with occurrence reported through FIR No. 27/2015 of Police Station Tangir, District Diamer.

2. Petitioner, who is involved for the offences of sections 337-A(iii)/34, P.P.C., booked through FIR No. 27/2015 dated 21-10-2015 of Police Station Tangir, seeks his release on bail through this petition. Previously petitioner moved similar bail petition (B.A. No. 86/15), before the Court of Session Diamer, who through his order dated 18/12/2015, refused to grant the bail facility, holding that:-- "1 .

2. Brief facts of the case according to the FIR are that accused/petitioner caused injury at the nose of complainant Charaguddin with a stone. Accused/petitioner is directly nominated in the FIR and offence under section 337-A(iii) provides 10 years imprisonment, therefore, accused/petitioner is not entitled for the concessions.

3. In view of the above this petition is hereby dismissed. 4. ."

3. The FIR of the case has been chalked on the written application of the complainant, wherein the complainant has alleged that, he had a quarrel with Mr. Imtiaz, real brother of the petitioner and in the meantime, petitioner hit the complainant with a stone. The stone, so used for hitting the complainant injured nose of the complainant. Soon after submitting the written report, the police concerned, instead of chalking FIR, endorsed the report in the Roznamcha of dated 25/08/2015 and chalked the FIR on 21/10/2015 after receipt of Medical Report regarding the nature of injury that complainant had allegedly received. So far, challan has been submitted in the trial Court and trial of petitioner and his co-accused is about to commence.

4. I have heard learned counsel for petitioner as well as the learned DAG. Learned counsel for petitioner argued that police concerned has wrongly chalked the FIR on 21/10/2015, although the doctor concerned gave his opinion on 28/08/2015, regarding the nature of injury to the complainant. The counsel for petitioner further contended that the report allegedly based for the chalking of FIR is false and concocted one, as the same does not bear any seal of the doctor, who issued the said report. On the other hand learned DAG opposed the petition and contended that petitioner is not entitled to the bail facility.

5. I have given thoughtful consideration to the arguments of the learned counsel for parties. At this stage of the case, we are supposed to tentatively assess the prosecution evidence. At this stage of the case, the prosecution has statements of the complainant and PWs as prosecution evidence against the petitioner, but the circumstances in which prosecution recorded the prosecution evidence renders the case, a case of further inquiry. It is not disputed that prosecution recorded statements of the PWs after 21/10/2015, although the occurrence took place on 25/08/2015 and the occurrence was reported promptly to the police concerned. So, this delay of lodging FIR, if unexplained and waiting for doctor's report, is no justification for chalking the FIR so delayed. Moreover, the offence of section 337-A(iii), P.P.C. goes as under:-- "Shajjah-i-hashimah to any person, shall be liable to arsh which shall be ten percent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir." The plain perusal of the above reproduced provision of law provides punishment of Arsh for the offence and the punishment of imprisonment is purely discretionary and the Court can award the same according to circumstances of each and every case. In the case in hand, it is not disputed that, the occurrence is result of a quarrel and occurred in the spur of moment. So, petitioner is neither habitual offender, nor the occurrence appears premeditated. The trial Court is yet to determine that, whether petitioner is habitual offender and the occurrence took place as a result of any preplanning of the petitioner and his co-accused. So, we are yet to determine, that whether punishment of Arsh will be sufficient or the trial Court will resort to additional punishment of imprisonment etc. or not, in case the occurrence is proved against the petitioner.

6. In the sequel of above discussion, I hold that petitioner is entitled to bail facility and I allow this petition. I direct for immediate release of petitioner on bail if not required in any other case, but subject to furnishing of personal bail bonds in the sum of Rs. 100,000/- (Rupees one hundred thousand only), by the petitioner with two sound sureties, each in the like amount to satisfaction of the trial Court or any Judicial Magistrate at Diamer or Gilgit. File be consigned to record. HBT/1/GB Bail granted.