2021 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

This revision petition is directed against the order of Additional District Court of Criminal Jurisdiction, Dhirkot dated 18.06.2020, whereby second bail application of the petitioner has been rejected in a case bearing FIR No.76/20 registered at Police Station Dhirkot on 17.04.2020 in offences under sections 296, 147, 148, 149 and 337, A.P.C.

2. Facts narrated in the FIR lodged by Hussain Tahir, complainant, are that on 17.04.2020 at about 1.45 p.m., he and for other persons were reciting "Drood-o-Salam" after offering "Juma prayer." In the meantime, accused Sanwal son of Mushtaq entered in mosque and forbade, them to recite "Drood-o-Salam" upon which complainant, Mehran son of Ibrahim Junaid son of Khalid, Qari Khurshid son of Hidayat Ullah and Ayyan Ali son of Khurshid came out from the mosque, where accused Sanwal and his companions with pre-arranged plan, armed with sticks were present who attacked upon them and started beating. On hue and cry Atique son of Anwar, Atta-ur-Rehman son of Asif and Arbab son of Sajid came at the place of occurrence but accused also started beating them with sticks. Accused Tariq inflicted stick injury at the head of Atique, accused Saadat gave stick blow at the tooth of Atique while this accused also caused stick injuries at face and arm of Atta-ur-Rehman, and accused Sanwal gave stick blow at the arm of Arbab whereas accused Ziafat also caused stick injury to Arbab at the other parts of his body. Other accused had also beaten the companions of complainant. The occurrence was witnessed by Shoib, Najeeb and others.

4. Raja Sohrab Ahmad, the learned counsel for the accused petitioner, reiterated the grounds narrated in the revision petition and vehemently argued that petitioner is an innocent person and no offence has been committed by him while he has been implicated in a false and fabricated case on account of local rivalry. He submitted that real facts of the case are that due to Covid-19, SDM, Dhirkot personally visited the village Riyala and directed the administration of Mosque to follow SOP's to secure the lives of people and limited persons should have been allowed for offering "juma prayer"; that SDM also announced that if any violation is committed, send him a video of such violation, he will take strict action against the violators while the complainant party were violating the aforesaid SOP's and accused-petitioner was making the video of such violation when complainant party attacked upon him in the mosque. He argued that in fact complainant party was aggressor resultantly accused party also received injuries. In this regard Police has also filed a complaint under sections 337-A(i), F(i), A.P.C. and 107/151, Cr.P.C. before the trial Court on 01.06.2020. Learned counsel while placing on record a copy of comments of SHO Police Station, Dhirkot presented before Justice of Peace and pointed out that in FIR it was alleged that accused Sanwal inflicted stick injury at the arm of Arbab whereas in the aforesaid comments it is stated that Sanwal caused injury to Laeeque Ahmad which create doubt about the allegation levelled against the accused petitioner. He further submits that accused petitioner was alleged for committing offence under section 337-F(vi), A.P.C. which entails less than 10 years punishment and does not fall in the Prohibitory Clause of section 497, Cr.P.C. and in such offence grant of bail is a rule and refusal is an exception. To substantiate his arguments he referred to and relied upon a case titled "Bhai Khan v. The State" [2020 YLR Note 23] it was held in the referred case that;- "In offence punishable less than 10 years grant of bail is a rule and refusal is an exception."

5. On the other hand, Imtiaz Latif, Advocate for complainant, while controverting the arguments of the counsel for petitioner, argued that occurrence is admitted by the defence; that specific role has been attributed to the petitioner during the occurrence. No previous enmity exists between the parties, thus the question of false implication does not arise. He pointed out that it was established that all the accused were in contact with each other and they committed the occurrence by pre-arranged plan; that during the investigation physical presence of petitioner and active role has been found and sufficient incriminating material has been collected by the investigating agency to connect him with the commission of alleged offence; that accused has committed non-bailable offence and punishment provided for the offence is 7 years' R.I and in a non-bailable case bail cannot be claimed as a right. The learned Counsel defended the impugned order on all counts and prayed for dismissal of revision petition. In support of his arguments the learned Counsel placed reliance on the following authorities:-

1. PLD 2007 Karachi 336 2. 2007 PCr.LJ 1056 3. 2005 YLR 1832 The case law PLD 2007 Karachi 336 and 2007 PCr.LJ 1056 is same and one case reported in two different journals which relates to cancellation of bail matter wherein it was held that principles for cancellation of bail are different from those of grant of bail. In case titled "Mohammad Munawar v. The State" [2005 YLR 1832] bail of accused was declined in offences under sections 324 and 337-F(vi), P.P.C. on the grounds that accused had fired with his pistol at the complainant four times causing him three injuries. 7(sic.) Heard. Record perused.

8. A perusal of FIR reveals that thirteen accused persons have been nominated in the FIR. The role of accused-petitioner has been specifically mentioned that he entered in the mosque and forbade complainant party from reciting "Drood'o-Slam" and thereafter inflicted an injury with stick at the arm of Arbab. It has also been mentioned in the FIR that when accused petitioner forbade the complainant from reciting "Drood-o-Slam," Mehran, Junaid, Qari Khursheed and Ayan Ali were present in the-mosque and when complainant and these persons came out from the mosque the accused petitioner and co-accused attacked upon them and also beat them but surprisingly these persons including complainant did not receive any injury nor statement of these witnesses under section 161, Cr.P.C. have been recorded. The last part of FIR also reveals that injured Atta-ar-Rehman, Arbab and Laeeque were physically examined by Police on the same day who were referred for medical examination but their statement under section 161, Cr.P.C. have also not been recorded immediately after the occurrence. Similarly names of two witnesses Sohaib and Najeeb have been mentioned in the FIR but their statements have not been recorded immediately after the occurrence. Non-recording of statements of star witnesses of the occurrence and recording statements of some of them with a considerable delay, prima facie, create serious doubt and there is also a counter version of occurrence which has been brought by the Police before the trial Court in shape of filing a complaint. The above mentioned facts and circumstances bring the case of accused petitioner in the ambit of further inquiry.

9. There is no cavil with the argument of learned counsel for complainant that in a non-bailable case bail cannot be claimed as a matter of right and can be declined even in respect of offences do not fall under the Prohibitory Clause of section 497(1), Cr.P.C. but at the same time section 497(2), Cr.P.C. postulates that if there are no reasonable grounds for believing that accused has committed a non-bailable offences but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail.

10. Therefore, while keeping in view the allegation levelled in the FIR and other material placed before the Court, prima facie case of accused-petitioner needs further probe and if he is found guilty of offence after recording the evidence in the trial Court, he shall have to face the consequences. The accused petitioner is behind the bars from 08.06.2020 and is no more required for the purpose of investigation. It is settled law that bail cannot be withheld as a punishment. In view of the above, by accepting the revision petition, the bail, in FIR No.76/2020 offences under sections 296, 147, 148, 149 and 337, A.P.C. is allowed to the accused-petitioner. He shall be released from the custody on furnishing bail bond in sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of trial Court. If the needful is done, he shall be released forthwith provided not required in any other case or offence. The office is directed to transmit original bail bond in the concerned trial Court. SA/49/HC(AJ&K) Bail granted.