2002 PLP 1234 (YLR)

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑F(iii)/337‑F(v)/34/379/411‑‑‑Bail‑‑ Grant of‑‑‑F. I. R. showed that the accused had given a blow with the butt of a .30 bore pistol on the nose of the complainant‑‑‑Police investigation had found that the accused was not initially armed with any weapon and had taken the gun of his co‑accused‑‑‑No weapon had been recovered from the accused during investigation ‑‑‑Offences invoked in the F.I.R. and in the challan did not attract the prohibitory clause of subsection (1) of S.497, Cr. P. C. ‑‑‑Additional Sessions Judge in his impugned order had observed that the allegations against the accused attracted provisions of S.337‑A(iii), P.P.C. but same had not been added to the F.I.R. or in challan‑‑‑Apparently the accused was not connected with the motive set up in the F.I.R.‑‑‑Two co‑accused of the accused allegedly taking an active part in the occurrence had already been granted bail by the Trial Court‑‑‑Challan of the case had already been submitted after completion of investigation‑‑‑Case of accused calling for further inquiry, he was granted bail. (b) Criminal Procedure Code (V of 1898)‑‑‑‑ ‑‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Consideration‑‑ Principles‑‑‑Only such of the penal provisions which have been invoked in the F.I.R. or in the challan have to be considered while deciding a matter of bail and not those penal provisions which, in the opinion of the Court could also be attracted to the allegations levelled by the complainant party. Shahid Hussain Kadri for Petitioner. Muhammad Khawar Kaleem for the State. Through this petition Haq Nawaz petitioner has sought post‑arrest bail in case F.I.R. No.41 registered at Police Station Wan Bachhran, District Mianwali on 25‑2‑2002 for offences under sections 337‑F(iii)/337 -F(v)/379/411, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that in the F.I.R. the allegation against the present petitioner was that he was armed with a pistol .30 bore and he had caused a blow with the butt of that pistol on the nose of Muhammad Ramzan complainant. However, during the investigation it had been found that the present petitioner was initially not armed with any weapon and it was during the proceedings of the incident itself that he had taken the gun of Khan Muhammad co accused and had given an injury with the butt of that gun on the nose of the complainant. It is not disputed that during the investigation no weapon was recovered from the petitioner's custody. The offences invoked in the F.I.R. as well as in the challan submitted in this case do not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. It had been observed by the learned Additional Sessions Judge‑I, Mianwali in his order' dated 24‑4‑2002 that the injury allegedly caused by the petitioner on the nose of the complainant attracted the provisions of section 337‑A(iii), P.P.C. but the learned counsel for the State has confirmed the fact that so far section 337‑A (iii), P.P.C. has not been added to the F. I. R. or the challan. It had been held by the Honourable Supreme Court of Pakistan in the case of Muhammad Anwar Samma, etc v. The State (1976 SCMR 168) and also by this Court in the case of Allah Bachaya and 3 others v. The State (2001 PCr.LJ 1082) that while deciding a matter of bail only those penal provisions are to be considered which actually stand invoked in such a case and not those penal provisions which in the opinion of the Court could also stand attracted to the allegations levelled by the complainant party. In this view of the legal position it appears that the learned Additional Sessions Judge was not justified in considering the provisions of section 337‑A(iii), P.P.C. while refusing bail to the petitioner. The petitioner apparently does not stand connected with the motive set up in the F.I.R. Two co‑accused of the present petitioner namely Fateh Khan and Khan Muhammad, who were also alleged to have taken an active part in the incident in question, have already been admitted to bail by the learned trial Court. The challan in this case has already been submitted after completion of investigation and, thus, continued custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage.

3. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court. S.M.A.H./H‑94/L Bail allowed.