2014 P Cr (PLP)

SHAH JEHAN KHAN AKHUNDZADA, J.

Accused-petitioner, Zameen Shah facing prosecution in case F.I.R. No.91 dated 7-2-2013 under section 337-A(iii), P.P.C. registered at Police Station Lahor District Swabi was refused bail by the Judicial Magistrate-III, Lahor and learned Additional Sessions Judge-I, Lahor District Swabi vide their orders dated 19-2-2013 and 5-3-2013 respectively. So, he has come to this Court for the same concession.

2. Brief facts of the case are that on 21-1-2013 at 1300 hours complainant Zahir Shah in an injured condition reported the matter at police post Sher Abad to the effect that his passport was lying with Mohtamim son of Saidan Shah and on the same day at 1200 hours he along with his maternal uncle Raqeeb Shah, went to Mohtamim Shah to ask his brother Zamin Shah, the accused-petitioner to return his passport, on which accused became annoyed and stated that first he should withdraw the case and then he will get the passport and beaten him due to which the complainant sustained injury on his nose. Motive for the occurrence was stated to be a family case between Sajawal brother of the complainant with his wife Mst. Sitara, sister of the accused-petitioner.

3. I have heard the learned counsel for the parties and have gone through the record of the case.

4. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of section 497, Cr.P.C. its totality and the sine qua non for releasing an accused on bail is that the Court may come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C. or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the case of commission of a non-bailable offence and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. is not to be granted as matter of course, with the simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.

5. In the light of above settled principle of law at bail granting stage the material available on record is to be sifted through tentatively in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question or not.

6. No doubt, the accused-petitioner is charged in the F.I.R. for beating the complainant as a result of which the complainant received injury on his nose and according to the Medical Officer, it is shown as "Shajjah-e-Hashimah" under section 337-A(iii), P.P.C. for which the accused shall be liable to "Arsh" which shall be ten per cent of the diyat and may also be punished with imprisonment of either description for return which may extend to ten years as 'Tazir' which shows that awarding imprisonment is discriminatory and the court should or should not impose it upon the accused at the time of recording conviction in a case, hence in these circumstances withholding of bail shall amount to punish a person before finding him guilty of the commission of offence. Moreover, though in Medico-legal Report there is an endorsement of the Medical Officer who has examined the victim that his nose bone has been fractured but neither the Medico-legal Report of the ENT doctor who examined the victim nor any X-Ray Film is available on file to support this opinion, hence in these circumstances in absence of the above material documents and the facts that the complainant was discharged from the hospital on the following day, case of the accused-petitioner requires further probe. The occurrence has taken place on 7-2-2013 and the accused-petitioner is shown to have been arrested on 8-2-2013 and since then he is in judicial lock-up. He remained in police custody but nothing incriminating was recovered from him. The Investigation in the case is complete and he is no more required for further investigation. Thus, there appears reasonable grounds for further inquiry into the guilt of the accused under section 497(2), Cr.P.C. which entitles him to the concession of bail.

7. Resultantly, this bail application is allowed and the accused-petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount, to the satisfaction of the learned Illaqa/Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. Above are the reasons of my short order announced on 15-4-2013. MWA/240/P Bail granted.