2019 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through the petition filed under section 497, Cr.P.C., the petitioner namely Shahvaiz alias Shoaibi seeks post-arrest bail in the case FIR No. 139 of 2018, dated 17.03.2018, registered at Police Station Fateh Sher, District Sahiwal, in respect of offences under sections 324, 337-A(ii), 34, P.P.C.

2. The allegation as against the petitioner as culled from the evidentiary material produced before the Court is that the petitioner gave a razor blow on the left side of head of Shehzad, son of the complainant, injuring him.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4. It has been noticed by this Court that the injury attributed to the petitioner was declared as "Shajjah-i-mudihah" made punishable under section 337-A(ii) and punishable for a term which may extend to five years as tazir. A tentative perusal of the record shows that, prima facie, there is no sufficient material available on the record to believe that the petitioner has committed an offence, which falls under the prohibitory clause of section 497 of the Cr.P.C. Section 324 of the Code of Criminal Procedure 1898, deals with an attempt to commit qatl-i-amd. An attempt as an indictable crime means an intentional act with a view to attain a definite end but which is not achieved because of circumstance independent of the will of the offender who makes the attempt. In the instant case, the intention of the petitioner to kill the complainant is not available, particularly when, after sustaining a injury, the injured was entirely at the mercy of accused person, but the- accused person, despite having a deadly weapon i.e. razor, did not repeal the blow. Applicability of section 324 of the P.P.C. has to be adjudged in the background of number of the accused persons, the weapons carried by them and the opportunity available to them to complete the intended offence. Receipt of a single injury has indicated that accused had no intention to kill the injured; otherwise he would have repeated the blow. The applicability of section 324 of the P.P.C. is yet to be determined during course of the trial and at best, the case of the petitioner seems to be covered by the provisions of section 337-A(ii) of the P.P.C. which does not fall within the prohibitory clause of section 497 of the Cr.P.C. In the given circumstances, the case of petitioners falls within the ambit of cases where grant of bail is a rule. Reliance is placed on the case of Jan Muhammad v. Haji Noor Jamal (1998 SCMR 500) wherein it has been held as under: "In light of the provisions contained, in section 324; P.P.C. read with section 337, P.P.C., we agree, with the submissions made by the learned counsel for the petitioner. We agree with him that present case is not covered by the prohibition contained in subsection (1) of section 497, Cr.P.C". Besides, no exceptional circumstances appear in this case to withhold bail to the petitioner. The petitioner is behind the bars since his arrest on 07.08.2018 and the investigation has been finalized, and the allegations against him are yet to be proved through evidence in the Court, as such, further detention of the petitioner in this case at this stage would not serve any fruitful purpose. Admittedly, the petitioner is previous non-convict. The trial has not seen any fruitful progress as yet. It is settled that while dealing with the question of bail, Court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of "Tariq Bashir and 5 others v. The State" reported as PLD 1995 SC 34, wherein it has been mentioned that section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with deaths, imprisonment of life or imprisonment for ten years (2) offences, punishable for imprisonment of less than ten years, the principle to be deduced from this provision of law is that non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail, will be declined only in extraordinary and exceptional cases, for example:- (a) Whether there is likelihood of abscondence of the accused; (b) Where there is apprehension of the accused tampering with the prosecution evidence; (c) Where that is danger of the offence being repeated if the accused is released on bail; and (d) Where the accused is a previous convict. This principle has also been reiterated, in the case of "Zafar Iqbal v. Muhammad Anwar and others" (2009 SCMR 1488), Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708). The prosecution has not produced any material to prove extraordinary and exceptional circumstances to refuse bail to the petitioner.

5. Learned counsel for the complainant has vehemently argued, that the earlier petition; under section 498, Cr.P.C., filed by the petitioner, was dismissed by this Court vide order dated 07.08.2018 and in presence of the said order the application, under section 497, Cr.P.C. for grant of post arrest bail should also be dismissed. Suffice is to observe that, considerations for pre-arrest bail and post-arrest bail are totally different. Reliance in this regard is placed on case-law titled as "Shah Nawaz v. The State" 2005 SCMR 1899, wherein it has been held by the august Supreme Court of Pakistan as under: "Suffice it to mention that learned Judge of the High Court was persuaded to cancel the bail allowed to the petitioner on the ground that the same Additional Sessions Judge had granted after arrest bail who had earlier declined to grant pre-arrest bail to petitioner. It is now well-settled that considerations for pre-arrest and post-arrest, bail are totally different, therefore, in our view the learned Judge had fallen in error to cancel the bail allowed to petitioner by the same Additional, Sessions Judge."

6. For the foregoing reasons the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the-sum of Rs,500,000/- (rupees five hundred thousand only) with two sureties, in the like amount, to the satisfaction of learned trial Court.

7. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court. SA/S-68/L Bail granted.