2026 P Cr (PLP)

Chaudhary Khalid Rasheed, J.

Foreword The captioned revision petition has been preferred against the judgment passed by learned District Court of Criminal Jurisdiction Bagh dated 08.08. 2025, whereby post arrest bail application of the accused/petitioners has been rejected. Precise facts forming background of the instant petition are, on the complaint of Muhammad Javaid Khan, FIR No.93/2025 was registered at Police Station City Bagh in offences under sections 322/34-A.P.C. on 14.04.2025 as per the allegation against the accused petitioners, they launched an attack on Muhammad Jahanzeb and his companions which resulted into the death of Muhammad Jahanzeb. The police after investigation submitted challan before the trial Court in the offences under sections 322/34 A.P.C. After arrest the accused petitioners filed an application before the District Criminal Court Bagh for their release on bail the Court after hearing arguments pro contra rejected the application vide its impugned judgment dated 08.08.2025, hence, the captioned revision petition. STANCE OF THE PETITIONERS: The learned counsel for the petitioners vehemently argued that the accused petitioners as per report under section 173 Cr.P.C. are alleged in the offence under section 322 A.P.C., hence, even if ultimately the case of the prosecution is proved only the sentence of Diyat can be awarded to the accused, thus, are entitled to get the concession of bail but the Court below miserably skipped to ponder the relevant law, thus requested to honour the instant revision petition. REFUTATION OF THE RESPONDENTS: The learned counsel for the complainant averred with vehemence that though challan has been presented in the offence under section 302 A.P.C., however, keeping in view of the facts of the instant case and allegation levelled in the FIR the offence under section 322 A.P.C. is apparently attracted, hence, the Court below accurately send away the bail application. The learned AAG also opposed the maintainability of the revision petition by contending that the petitioners are fully linked with the offence with which they have been charged, hence are not entitled to be enlarged on bail. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. COURT OBSERVATIONS AND RELEVANT LAW: A perusal of record reveals that investigating agency after detailed investigation has submitted its report under section 173 Cr.P.C.in the offences under sections 322 and 34 A.P.C. before the trial Court. The offence under section 322 APC though is non-bailable however, the superior Courts have held in plethora of judgments that in all the offences where ultimate sentence of imprisonment has not been provided under the Statute, the bail may not be declined as the same would amount to a grave injustice because an accused person cannot be compensated for his said period of detention rather it tantamount to award imprisonment before conviction which is not even provided in case of conviction, hence further amounts to be a case of double jeopardy. Reliance in this regard may be placed on 2023 PCr.LJ 1401, wherein at page 1403 it has been observed as under:- "

6. Keeping in view the above legal position, it can safely be held that if an accused charged under section 322-P.P.C, upon pleading his guilty or after his trial, is convicted accordingly, he can only be kept in confinement in case he commits default in the payment of Diyat amount and the provision of section 382-B Cr.P.C. does not apply in such like case, which ordains that "where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence." As such, incarceration of the petitioner during trial would amount to punishment before his conviction which is against the mandate of law vis- -vis applicability of section 382-B Cr.P.C. settled by the Honourable Supreme Court of Pakistan in the dictum supra. Moreover, it is settled law that an offence which does not entail the punishment of imprisonment the accused shall be entitled to bail as of right because if he is refused bail the period as under trial prisoner would amount to a case of double jeopardy.

7. Keeping in view the above legal position, it can safely be held that incarceration of the petitioner as under trial prisoner is not justified as the same would not serve any useful purpose and even in case of his conviction such period cannot compensated in any manner. Therefore by allowing this petition, the petitioner is admitted to post-arrest bail subject to his furnishing of bail bond in the sum of Rs.1,00,000/- (Rupees one lac only) with two sureties in the like amount to the satisfaction of the learned of Illaqa/Duty Judicial Magistrate, who shall ensure that the sureties are local, liable and men of means." Same like observations have been recorded by Shariat Court of Azad Kashmir in PLD 1983 AJ&K Shariat Court 4, wherein it has been observed as under: "The applicant is a convict for the offences under sections 11 and 13 of the "Islaami Tazeerati" Act, 1974 who was sentenced to 'Diyyat' amounting to Rs.12,83,040/- by the District Criminal Court, Mirpur. The 'Diyyat' is to be paid under law within a period of three years from the date of order of sentence. The convict was held liable to pay 'Diyyat' as a whole under sections 11 and 13 of the Islami Tazeerati Act and in default of payment of 'Diyyat' he was ordered to be imprisoned till the payment is made thereof by him. The trial Court did not care to apprehend sections 11 and 13 of the Islaami Tazeerati Act under which he was convicted and sentenced by it. When an accused is found guilty of the offences under sections 11 and 13 of the Islaami Tazeerati Act he is to be sentenced to 'Diyyat' payable by 'Aaqelah' in three installments to be reasonably apportioned. There is no provision in law in force that a period during which the 'Diyyat' is to be paid by 'Aaqelah' under law, the convict is to be imprisoned. No apportionment of the amount of 'Diyyat' in form of installments was made by the convicting Court and at the instant stage, there is no question of default of payment which is to be made within a period of three years under law. Obliviously the imprisonment of applicant/appellant is not warranted by law. That being so, this application for bail is accepted and the convict is enlarged on bail in the sum of Rs.5,00,000/- with three sureties each in the like amount who shall be liable to pay the same jointly as well as severally, to the satisfaction of the Additional District Magistrate, Mirpur. A copy of this order shall be sent to the Additional District Magistrate, Mirpur for information etc. of the convict so as to enable him to furnish security and personal bonds as ordered by this Court." As far as the argument advanced by the learned counsel for complainant that from the contents of FIR offence under section 302 APC is attracted, is concerned, no doubt, a Court can convict an accused person in any offence though not mentioned in the report submitted under section 173 Cr.P.C. if attracted and proved from the evidence produced by the prosecution at the conclusion of the trial but at a bail stage only the tentative assessment of contents of FIR, statements recorded under section 161 Cr.P.C. and evidence recorded in shape of material collected by the police has to be mused however the concession of bail cannot be declined for the reason that some other offence which is not mentioned in the challan is also attracted rather it is beyond the jurisdictional competence of the Court at bail stage. DISPOSAL: The sum and substance of the above discussion is, the captioned revision petition is hereby accepted and it is ordered that the accused petitioners shall be released on bail forthwith provided they furnish bail bonds in the sum of Rs.50,00,000/- each consist of two local sureties as well as personal bonds in the like amount to the satisfaction of any Judicial Magistrate Bagh, if not required in any other case. JK/56/AJK(H.C) Revision allowed.