2006 PLP 1563 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

The petitioner was refused post-arrest bail by the learned Judicial Magistrate on 11-5-2005, and by the learned Additional Sessions Judge on 27-5-2005 in case against him vide F.I.R. No.110, dated 11-4-2005 under sections 337-F(v), 337-L(ii) and 34, P.P.C. registered with Police Station, Sadar Bhakkar. He has now filed the instant petition for the same relief.

2. Charge against the petitioner is that he along with his co-accused attacked the complainant while equipped with "Sota", injuring his right arm besides inflicting injuries to his brother. The petitioner was arrested on 5-5-2005 and after remaining on physical remand has since been remitted to judicial lock-up.

3. The learned counsel for the petitioner submitted that the petitioner is innocent and has been involved in a false case out of enmity/animosity of the complainant/police. It was further submitted that all the injuries attributed to the petitioner are simple with blunt weapon and his co-accused having been ascribed similar role has already been released on bail by the learned Magistrate. It was further argued that inordinate delay of 5 days in lodging the F.I.R. has not been explained by the prosecution, which is fatal to the case. It was further emphasized that the police has already declared 2 of the co-accused persons as innocent and the Investigating Officer has opined that the occurrence did not take place in the manner, mentioned in the F.I.R. According to the learned counsel for the petitioner there was a counter-version whereunder the petitioner and 2 others were injured but their injuries were suppressed by the prosecution which has negatively reflection on the case.

4. Bail was opposed with the arguments that the petitioner is named in the F.I.R. with attribution of specific role of causing injuries to the complainant and the P.W. It was further submitted that the petitioner while on physical remand led to recovery of "Sota" with which he was equipped at the time of occurrence and this being incriminating evidence, he is not entitled to the concession prayed.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record with their assistance. All the injuries attributed to the petitioner are with blunt weapon and none of those is on any vital part of the injured complainant. Delay of 5 days in lodging the F.I.R, has not been explained by the prosecution and "Sota" allegedly recovered from the petitioner was not stained with blood.

6. Though under law opinion of the Investigating Officer is not binding on the Courts yet the same has persuasive value at the bail stage. Investigating Officer has reported that occurrence did not take place in the manner, described in the F.I.R. and two of the accused persons were falsely involved in the case. If prosecution story evidence is partly false then it makes the case of the petitioner that of further inquiry. Petitioner's two co-accused have already been released on bail by the Trial Magistrate and role ascribed to the petitioner is similar except the seat/nature of the injury attributed to him, and principle of consistency is fully attracted. Since the petitioner has counter-version of the occurrence wherein he along with two others sustained 9 injuries, suppressed in the F.I.R., it is yet to be determined as to whether who out of the parties was the aggressor. Offences charged are punishable with maximum punishment of 5 years' R.I. and do not fall within the prohibitory clause of section 497, Cr.P.C. In spite of his arrest on 5-5-2005 and submission of challan, trial of the case has not commenced and there is no chance of its conclusion in the near future. Person of the petitioner is no more needed for investigation purposes and his further detention would not advance the prosecution case, any more. Bail is not to be withheld as of punishment, especially when there is no allegation of abscondance, tampering with the prosecution evidence by the petitioner. He will face the sentence if ultimately convicted by the trial Court.

7. For the reasons noted above, the petitioner has made out a case for his post-arrest bail in the case registered against him, pending its trial. This petition is accordingly allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court. H.B.T./M-106/L Bail granted.