2002 P Cr (PLP)

Date of hearing: 6th September, 2001. Through the instant petition, Muhammad Aslam son o: Muhammad Arif, petitioner, who is involved as accused in a case F.I.R No .198 of 2001 registered under sections 337-A(ii), 324, 148 and 149 P.P.C. at Police Station Saddar Arifwala on 23-4-2001, has sought hi; post-arrest bail.

2. The precise allegations as leveled in the F.I.R. are that or 22-4-2001 at about 5-45 p.m., when Ghulam Moin-ud-Din (injured brother of the complainant, was returning to his house, he was attacked by nine accused out of these nine accused seven were nominated in the F. I. R.

3. The perusal of the F.I.R. shows that the accused Muhammad Abbas was armed with .12 bore gun, Muhammad Azam and Ahmad Raza, armed with Sotas, Muhammad Khan armed with a hockey, Muhammad Amir armed with a pistol .30 bore, Muhammad Amin empty-handed and Muhammad Aslam, (petitioner) armed with hatchet, assaulted upon Ghulam Moin-ud-Din and Caused him various injuries. It was further stated in the F.I.R. that Ghulam Moin-ud-Din was also taken to their Dera by the accused and he was also given beating there.

4. The petitioner was arrested on 18-6-2001. The hatchet was shown to be recovered from him. Now he is in judicial lock-up.

5. The learned counsel for the petitioner states that a large number of persons has been involved in the case and the story of the prosecution as alleged in the F.I.R. is not plausible that two of the accused, who were armed with fire-arms if wanted to kill Ghulam Moin-ud-Din nobody could stop them from doing so that according to the F. I. R. the petitioner caused one injury on the person of Ghulam Moin-ud-Din, which landed on the back of his right ear; that it is not a case of the prosecution that the petitioner repeated the blows and that section 324, P.P.C. has beer added without any substance and the other offences mentioned in the F.I.R. do not attract the provisions of the prohibitory clause of section 497, Cr.P.C.

6. On the other hand the learned counsel for the complainant ha: vehemently opposed the grant of bail to the petitioner on the ground that while the petitioner was armed with hatchet, caused injury on the person of Ghulam Moin-ud-Din. He was named in the F.I.R. There is no delay in lodging the report. The injury caused by the petitioner resulted into the loss of hearing of the victim, therefore, the provisions of section 336, P.P.C. are attracted, which fall within the prohibitory clause. Ghulam Moin-ud-Din P.W. was mercilessly beaten by the accused party.

7. The learned State Counsel has adopted the lines of arguments of the learned counsel for the complainant and added that blood-stained clothes of the injured P.W. had been taken into possession, which corroborates the fact that the injured was given a severe beating.

8. I have heard the learned counsel for the parties and gone through the record. The perusal of the medico-legal report shows that injured received two injuries on his head, which are not attributed to the petitioner as the same were caused by the blunt weapons. The injury attributed to the petitioner landed on the back of, right ear and was initially declared "Shajjah-i-Khafifah". So far section 336, P.P.C. has not been added. Admittedly, for the purpose of bail, the law cannot be stretched in favour of the defence or the prosecution. Reliance is placed on Amir v. The State PLD 1972 SC 277.

9. It has been noticed that although two of the accused were armed with fire-arms yet no injury was caused by the fire-arms, which clearly shows that the accused had no intention whatsoever to kill anybody. Similarly the petitioner has also not repeated the blows and only one injury is attributed to him. Neither any bone was cut nor any fracture was caused in the result. of the injury caused by the petitioner.

10. As far as the arguments of the learned counsel for `the complainant is concerned that the petitioner was recently arrested, to say the least, it is not a legal argument. As the bail cannot be withheld as punishment and in case where the Court feels that it is a case of further inquiry then bail cannot be withheld even for a day. Reliance is placed on the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585.

11. The learned counsel for the complainant has relied upon the case of Shabbir Ahmad alias Shibli v. The State 1999 PCr.LJ 1348, which deals with the general powers relating to the grant or refusal of bail in the circumstances of the case.

12. The initial report of the Medical Officer was verified by the Board and the same is available on the record as Annexure "G".

13. In these circumstances the question whether the case of the petitioner falls within the ambit of section 324, P.P.C., needs further probe and inquiry. As far as the other offences are concerned they do not fall within the mischief of prohibitory clause of section 497, Cr.P.C., therefore, I am inclined to allow this petition and admit the petitioner to bail, subject to his depositing bail bonds in the sum of Rupees ten thousand with one surety in the like amount to the satisfaction of the trial Court. H.B.T./M-826/L ???????????????????????????????????????????????????????????????????????????????????????????? Bail granted.