2018 PLP 915 (MLD)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. the petitioner has sought pre-arrest bail in case FIR No.77/17 dated 22.04.2017, under sections 337-F(v), 337-A(iii), 337-L(2), 342, 147, 149, P.P.C., registered at Police Station Kotli Said Ameer, District Sialkot.

2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail before arrest and only tentative assessment is required at this stage. It has been noticed by this Court that there is an unexplained delay of four days in registration of FIR, which prima facie shows that the FIR has been got recorded after due deliberation and consultation. Although in FIR, the petitioner has been assigned the role of causing iron-rod blow on the face of the complainant and initially the injury attributed to the petitioner was declared by the doctor as Shajjah-i-hashimah falling under section 337-A(iii), P.P.C., but later on the complainant was re-examined by the District Standing Medical Board and according to the opinion of ENT Surgeon, "no nasal deformity was seen in injury No.4". On the basis of the result of re-examination of the complainant, offence under section 337-A(iii), P.P.C. stands deleted in this case. Moreover, during the course of investigation the petitioner has been held liable only to the extent of offence under section 342, P.P.C., which is bailable in nature. In view of the allegations contained in FIR and the facts emerged during the course of investigation, prima facie the case against the petitioner has become a case of two versions; one put forward by the complainant in FIR and the other came on record during investigation and which version is correct shall be determined by learned trial court after recording evidence. Reliance can be placed upon "Ehsan Ullah v. The State" (2012 SCMR 1137), wherein, Hon'ble Supreme Court of Pakistan has been pleased to hold as under:- "This shows that in the present case the prosecution itself has two versions vis- -vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt." In this regard, guidance can also be sought from the pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State etc." (2016 SCMR 18), wherein the Apex Court has been pleased to observe as under:-- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice." It is settled law that the questions of sharing common intention and vicarious liability of the petitioner in the commission of alleged offence shall be determined by learned trial court after recording evidence. Admittedly the petitioner is previous non-convict. Neither he is hardened, dangerous, desperate criminals nor has committed the alleged occurrence on the pretext of honour, therefore, section 337-N(2), P.P.C. also comes to his rescue. The person of the petitioner cannot be handed over to police only for the purpose of effecting recovery of iron-rod, which otherwise has lost relevancy with the passage of time as occurrence in this case took place on 18.04.2017. In such situation, recovery of weapon of offence after the lapse of about four months and twenty days is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349. The petitioner has already joined the investigation which is complete, therefore, no useful purpose would be served by sending him behind the bars so as to enable him to come out of jail on post arrest bail after few days.

3. For what has been discussed above, false implication of the petitioner with mala fide intention and ulterior motive cannot be ruled out of consideration and the petitioner has made out a case for grant of bail before arrest to him. Resultantly, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide this Court's order dated 15.05.2017 is confirmed subject to furnishing bail bonds in the sum of Rs.100,000/- (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. WA/F-21/L Bail confirmed.