2004 PLP 1554 (YLR)

Muhammad Mohsin Rasheed for the State. Saeed Ahmad son of Naseer Ahmad got registered a case F.I.R. No.337 of 2003 on 31‑7‑2003, with Police Station City, Sadiqabad under sections 342/506, P. P. C During investigation, sections 337‑A(i), F(v), P.P.C. was added.

2. The story narrated in the F.I.R., in brief is that on 31‑7‑2003 at about 9‑00 a.m., the complainant alongwith his wife was going to Chak No. 120/P to visit the house of his relative Ghulam Mustafa. When they reached 3/4 acres from his house, Shabbir Ahmad (petitioner), Muhammad Ishaq and Muhammad Ibrahim sons of Shabbir Ahmad intercepted them and on the direction of Shabbir Ahmad to teach a lesson to the complainant, Muhammad Ishaq and Muhammad Ibrahim started inflicting stick blows to the complainant. All these accused persons took the complainant near their house and tied him with an iron chain with a tree and also locked the chain. The motive as averred in the' F.I.R. was that Shabbir Ahmad and other accused had suspected illicit relations of the complainant with the daughter of Shahbir Ahipad, accused.

3. The petitioner was arrested in this case on 7‑8‑2003. He applied for grant of bail after arrest which was not successful as the learned Magistrate 1st Class, Sadiqabad had rejected his bail application on 13‑8‑2003. The petitioner, thereafter moved his bail application to the learned Additional Sessions Judge, Sadiqabad but that application was also dismissed on 23‑8‑2003. Hence, this post‑arrest bail petition.

4. Learned counsel appearing on behalf of the petitioner submits that the offences with which the petitioner has been accused do not fall within the prohibitory clause of section 497, Cr.P.C.; that there was no allegation in the F.I.R. with regard to the infliction of the injuries to the complainant by the petitioner; that the petitioner has been involved in the alleged occurrence due to enmity, as the petitioner had earlier got registered an F.I.R. against the complainant.

5. On the other hand, learned counsel appearing on behalf of the complainant submits that F.I.R. was prompt; that the petitioner was nominated in the F.I.R. and specific role has been attributed to him and that the offence under section 324, P.P.C. would be added afterwards as the circumstances of the case suggest this course. He has referred to Dildar Baig v. The State 1998 SCMR 358, in which, an accused with attribution of specific role was not granted leave by the Honourable Supreme Court. He has further pleaded that the complainant had remained in the hospital for a long time and the challan has already been presented in the concerned Court, therefore, the petitioner should not be granted bail.

6. Learned counsel for the State has also opposed the grant of bail to the petitioner almost on the same grounds as submitted by the learned counsel for the complainant.

7. I have considered the submissions made by learned counsel for the parties and perused the record.

8. Mere fact that the petitioner is named in the F.I. R. does not mean that he should be disallowed the concession of bail without considering the facts and circumstances of the case. The role attributed to the petitioner in the F.I.R. is trot of a person inflicting injuries. Moreover, there appears prima facie, no common intention of the petitioner to inflict the complained injuries. He was empty handed and had not wreaked any injury to the complainant. The allegation of there instigation to other co‑accused in the circumstances of the case, cannot be used as good cause for the deprivation of the concession of bail. In Tariq Bashir and 5, others v. The State PLD 1995 SC 34, referred to by the learned counsel for the petitioner, it was held that the grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception. In the instant case, there is no injury on the person of the complainant which could be considered dangerous to his life. In Asadullah v. The State 1994 PCr.LJ 2491 (Lahore), bail was granted to an accused who was empty‑handed at the time of occurrence and against whom the accusation was that he had gripped the injured deceased for facilitating the principal accused to inflict fatal blow. In another citation Abdul Ghaffar v. The State 1992 PCr.LJ 545 (Lahore) when no injury was caused by the accused to the deceased, although Lalkaras were raised and he had caught hold the deceased, yet he was granted bail. In Muhammad Hussain v. The State 1992 PCr.LJ 2139 (Lahore) although injuries were attributed but those were found simple in nature and not caused on vital parts of the body, yet the accused was granted bail. The alleged common intention of the accused/petitioner is still to be taken into consideration by the concerned competent Court after recording B of the evidence of prosecution witnesses as held in Muhammad Nawaz v. The State 1981 PCr.LJ 1232.

9. There is yet another fact of this case, Learned counsel' appearing on behalf of the petitioner has submitted a copy of F.I.R. No.353 of 2003 under sections 11/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, registered at Police Station, City, Sadiqabad in which the complainant of the present case was blamed for having illicit relations with the daughter of the petitioner, therefore, present case, prima C facie, seems to be a counter‑attack as against the petitioner.

10. The injuries on the person of the complainant are not of such nature which could be considered as serious. The facts of the case relied upon by the counsel for the complainant i.e. 1998 SCMR 358 (supra) are not at par with the facts of this case. In that case the accused was named in the F.I.R. with a specific role and allegation against him was of serious nature, therefore, he was refused bail. But in the instant case, the situation is different. Still the accused has not been charged of the offence under section 324, P.P.C. Therefore, considering his case to be of further inquiry I admit the petitioner to post arrest bail subject to furnishing bail bond in the sum of Rs.30,000 (Thirty thousand rupees) with one surety in the like amount to the satisfaction of the learned trial Court. The instant petition, thus, stands accepted, with the observation that the assertion above‑noted be considered for the purpose of bail only. H.B.T./S‑55/L Bail granted.