1988 PLP r (PCRLJ)

Syed Sarfraz Ahmed, A.A.‑G. for the State. This bail application is moved on behalf of the applicant, who is facing trial before the learned Senior Civil Judge and Assistant Sessions Judge Tando Allah Yar for the offences under sections 325, 148, 147 and 307, P.P.C. alongwith four co‑accused. The case for the prosecution in brief is, that on 16‑7‑1987 complainant Irshad was coming from his land alongwith his father Haji Mohammad Ishaque carrying the milk of buffaloes on motor cycle. They were waylaid by the present applicant and four co‑accused who were armed with Dandas. They are alleged to have mercilessly beaten Haji Mohammad Ishaque. Such F.I.R. was lodged with the Tando Allah Yar Police Station on the same date at 7‑45 p.m. All the five accused persons including the present applicant moved application for bail before arrest before the Sessions Judge, Hyderabad on 22‑10‑1987. The learned Sessions Judge was pleased to grant pre‑arrest bail to the four co‑accused but rejected the bail application of the present applicant, mainly on the ground, that 19 injuries were caused to the injured, who appeared to have been mercilessly beaten and that grievous injuries were attributed to the present applicant. The applicant was remanded to jail on 28‑10‑1987 after his pre‑arrest bail application was rejected. The applicant moved this application before this Court under section 498, Cr.P.C. on 29‑10‑1987. However, simultaneously he moved application for bail after arrest before the trial Court also. It may be pointed that after challan the learned Sessions Judge transferred the case and the bail application to the Sr. Civil Judge and Assistant Sessions Judge Tando Allah Yar, who rejected his bail application on 3‑11‑1987 mostly on the grounds, on which earlier application was rejected by the learned Sessions Judge. The preliminary objection has been raised in this Court, that this application is not maintainable as after being remanded to the custody, the applicant had not moved the trial Court in the first instance before moving this Court. Both the parties have relied upon the case of Wali Muhammad v. The State reported in 1973 Pakistan Criminal Law Journal 873, in which the then Chief Justice of this Court late Mr. Justice Tufail Ali Abdul Rehman had held as under: "There is no doubt in that, unless there are very serious reasons why such a course should be preferred, the ordinary principle that the lower Court should be approached first, should be invariably followed. It is not open to a Judge hearing the case fixed for final disposal or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction." In the instant case, as already pointed the applicant did approach the trial Court after filing of this application and views of the trial Court while rejecting the bail application are before this Court to be considered, while deciding this application. Mr. Syed Sarfraz Ahmed, learned Asstt. A.‑G. appearing for the State concedes, that this Court should not reject the application merely on this technical ground. He has referred to the case of Crown v. Khursheed P L D 1953 Federal Court 170, wherein their Lordships have held that section 498 was not ancillary or subsidiary to sections 496 and 497 but was independent of all the powers conferred on the High Court or Court of Sessions under section 496 or 497 Cr.P.C. In my opinion it would not serve any useful purpose to dismiss the application on this technical ground. In such case, the applicant can even repeat the application today as he has already moved trial Court for bail after arrest. Coming to the merits of the case, the main ground that appears to have weighed with the learned Sessions Judge and the trial Judge, while rejecting the bail application is that there were number of injuries on the person of the injured and grievous injury was allegedly caused by the present applicant. Mr. Aftab Ahmed Akhund, learned counsel appearing for the complainant side concedes, that this view of the learned Courts below, while rejecting the bail application of present applicant only, was not correct, as he has not considered the vicarious liability of the other four co‑accused. Under the F.I.R. only one injury is attributed to the applicant, whereas all the culprits including the four co‑accused are alleged to have jointly caused the nineteen injuries. Therefore, so far, the ground of merciless beating is concerned, the case of the present applicant cannot be considered to be distinguishable from the case of four co‑accused, who have been granted bail before arrest by the learned Sessions Judge. According to the F.I.R. the present applicant is alleged to have caused injury on the lips of the injured, thereby causing fracture of his teeth. This injury is no doubt grievous, but it is not such, that can be said to be dangerous to the life of the injured person. The learned counsel for the applicant has relied upon 1976 SCMR

168. In that case, their Lordships were pleased to grant bail to the accused person in a case under section 307, P.P.C. where prima facie the medical report did not disclose any injury such as is likely to result in death in usual course of nature or such as can be so imminently dangerous or likely to cause death. The learned Sessions Judge has relied upon 1987 Pakistan. Cr. Law Journal 709, wherein a learned Single Judge of Lahore High Court has refused bail in case under sections 307 and 325, P.P.C. However, it is submitted by Mr. Noor Nabi, learned counsel for the applicant, that the facts of reported case are distinguishable from the present case. In the reported case, there were seven grievous injuries and injured was removed to the hospital in unconscious condition and the medical report disclosed the injuries as collectively dangerous to his life. The learned Sessions Judge has also relied upon 1986 Pak. Cr. Law Journal 1806 wherein a learned Single Judge of this Court has held, that the bail was not matter of right even if offences did not come within the prohibition, but always there were exceptions looking to the nature of the offences and circumstances of case. In the reported case a Doctor was abducted from his clinic and he was recovered from the abductors, with grievous injuries on his person. Looking to the facts and circumstances of that case the bail was refused. The grant of bail is discretionary power of the Court, which of course Court has to exercise judiciously. However, no hard and fact rules can be laid down in such case, but each case has to be decided on merits on the facts of such case. In the instant case, no doubt there are 19 injuries on the person of the injured, but 15 injuries are simple bruises on the non‑vital parts of the body. Two injuries which are caused by one blow on the lips of the injured caused fracture of his two teeth, which no doubt is grievous injury, but is not of serious nature. Two injuries are of course on the scale of the injured but they are also neither grievous nor of serious nature. Mr. Aftab Ahmed Akhund has relied upon the case of Imam Bux v. Muhammad Bux, 1979 S C M R

187. However, this case was a murder case and their Lordships held, that High Court had not considered the vicarious liability of the accused who were released on bail. Apparently, this case is distinguishable from present case. Mr. Noor Nabi has relied upon 1977 S C M R 449 wherein their Lordships have held, that as the offence under section 325, P.P.C. was punishable for 7 years' R.I. and did not come within prohibition under section 497, Cr.P.C. the bail in such case should not be refused merely because that offence was non‑bailable or on the basis of number of injuries suffered by the victim. Considering the facts of the case and submissions‑of the parties and the case law discussed above in my opinion the applicant is entitled to be released on bail. Mr. Aftab Ahmed Akhund has raised another objection, that this application should not be heard today, as he has moved application for cancellation of the bail of the four co‑accused, who have been granted pre‑arrest bail by the learned Sessions Judge. Apart from the fact, that the grounds for consideration for grant of bail before arrest are different from the grounds considered for the grant of bail after arrest, as already pointed above, I have already held, that on the merits the applicant is entitled to be released on bail. As such it would not be in the interest of justice that the applicant should be kept in jail only on the ground, that application for cancellation of bail has not been fixed by the office today, because the respondents in that case have so far not been served. I accordingly order, that the applicant be released on bail on furnishing surety in the sum of Rs.30,000 and PR bond in the like amount to the satisfaction of the trial Court. This order will not prejudice the case of the complainant in the aforesaid application for cancellation of bail. M.Y.H/K‑80/K Bail granted.