2002 P Cr (PLP)

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref. Syed Zahid Hussain Bukhari for Petitioners. Mazhar Iqbal Sindhu for the Complainant. Mian Humayun Aslam for the State. Date of hearing: 6th December, 2001. Through this petition Abdul Majeed and Karamat Ali petitioners have sought post‑arrest bail in case F.I.R. No.114 registered at Police Station Faizabad, District Sheikhupura on 29‑5‑2001 for offences under sections 148/302/324/149/186/506, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that admittedly both the present petitioners had not been nominated in the F.I.R. as some of the perpetrators of the offences in question. It has been mentioned in the F.I.R. that the nominated accused persons were accompanied by six others who were unknown to the complainant at the relevant time and a perusal of the F.I.R, further shows that no active role had been ascribed to the said six unknown persons. After two days of registration of the F.I.R. i.e. on 31‑5‑2001 the complainant had made a supplementary statement before the Investigating Officer through which the present petitioners had been implicated. According to that application Karamat Ali petitioner No.2 was empty‑, handed during the occurrence and he had not caused any injury to any person and Abdul Majeed petitioner No. 1 was statedly armed with a Sota and he had caused a blow with that Sota on the head of Mubashar Ahmad Khan complainant. It is interesting to notice that till the making of the supplementary statement by the complainant on 31‑5‑2001 even the eye witnesses mentioned in the F.I.R. had not named the present petitioners in their statements under section 161, Cr.P.C. It has also intrigued this, Court to learn that the names of the present petitioners had been brought, on the record of this case after two days of the occurrence by the complainant and all the eye‑witnesses despite the fact that the occurrence in this case had taken place during daylight and the present petitioners lived in the same village as the complainant and the eye‑witnesses mentioned in the F.I.R. It could, thus be said that prima facie implication of the present petitioners in this case was an outcome of deliberations on' the part of the complainant party spanning over a period of two days.

3. It has already been observed above that even according to the supplementary statement of the complainant Karamat Ali petitioner N6.2 was empty‑handed during the occurrence and he had not caused any injury to any person during the incident in question and that Abdul Majeed petitioner No.1 was allegedly armed with a Sota with which he had caused a blow on the head of Mubashar Ahmad Khan complainant. The medico‑legal report in respect of Mubashar Ahmed Khan complainant, however, shows that he had sustained two injuries with which were found to have been caused by a blunt weapon. A combined. reading, of the F.I.R. as well as the supplementary statement made by the complainant depicts that as many as five persons had independently caused injuries to the complainant but surprisingly the medico‑legal report in respect of the complaint reflects only two injuries on his person. The question as to which out of those five persons, including the present petitioners, had in fact hit the complainant and which of those five persons had been alleged a role which was actually non‑existent is a question which surely scales for further probe. The challan in this case has already been submitted after completion of investigation and, thus continued physical custody of the petitioners in jail is not likely to serve any beneficial purpose at this stage. For all these reasons the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.

4. It has vehemently been argued by the learned counsel for the complainant that the charge in this case has already been framed and the trial of the present petitioners has already commenced and, thus at such a stage this Court may not admit the petitioners to bail as such admission to bail is likely to prejudice the case of the complainant party and is likely to send a wrong signed to the learned trial Court. I have, however, remained unable to subscribe of this submission of the learned counsel for the complainant. It has already been observed above that the case against the present petitioners calls for further inquiry into their guilt. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be granted to such an accused person as of right and not by way of grace or concession. Bail is sometimes refused to an accused person in a criminal case if the trial of such a case has commenced but such refusal proceeds on the principal of practice and propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the later must prevail. A reference may be made in this regard to the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585.

5. For what has been discussed above this petition is allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./A‑410/L Bail granted.