1986 PLP 1085 (MLD)

‑‑‑S.497‑‑Penal Code (XLV of 1860), S.307‑‑Bail, grant of‑‑Grievous head injury specifically and consistently attributed to accused‑‑Victim of assault operated upon for both head and leg injuries found to be grievous and still walked with difficulty with help of crutches‑‑Bail refused in circumstances. Sardar M. Latif Khosa for Petitioner. Zafar Mahmood Anjum assisted by Sahibzada Farooq Ali Khan for the State. This bail application has been filed on behalf of Muhammad Irshad, petitioner, who alongwith three others was reported against for having waylaid Noor Muhammad, complainant, and causing injuries to him with sticks on 18‑1‑1985 at 4 p.m., in the vicinity of Chak No.101/12‑L, district Sahiwal. According to prosecution the petitioner gave a stick blow on the head of the complainant which resulted in the fracture of his skull. Besides it, Noor Muhammad suffered 7 more injuries including fracture of right tibia. The last mentioned injury was attributed to Hayat who has since been declared innocent. Another co‑accused Muhammad Nawaz has also been declared innocent. The third co‑accused, namely, Jan Muhammad has been released on bail. The petitioner was, however declined bail by the trial Court and Sessions Judge, hence

2. It is argued on behalf of the petitioner that the complainant has been proved to be a liar inasmuch as Hayat and Muhammad Nawaz' whom he named as his assailants have been found innocent. Further urged that from the F.I.R. it appears that Noor Muhammad despite grievous head injury went on foot to the police for making the report which is suggestive of the fact that the head injury was not "grievous" but this result had been procured through underhand means. He further argued that at the first instance only a report in the daily diary of the Police Station was recorded on 18‑1‑1985 and regular case was registered at Police Station Kassowal on 26‑1‑1985 after' the medical witness had declared the two injuries of Noor Muhammad as grievous which means that initially the offence committed by the petitioner was not considered as a cognisable one. Lastly, he argued that the facts of the case do not disclose an offence under section 307, P.P.C. and that the case in the alternative falls under section 325, P.P.C. which is not covered ‑by the prohibitory clause of section 497, Cr.P.C., and, therefore, the petitioner has right to be released on bail. Conversely, learned counsel for the State as well as for the complainant argued that in the first instance a report was entered in the daily diary because the doctor had not declared the nature of injuries by then and had kept both head as well as leg injuries under observation which does not damage the prosecution case. Further submitted that both the grievous injuries of the complainant were operated upon in the Nishtar Hospital, Multan, and even now the injured is able to walk with difficulty on crutches. He further stated that because the injured person remained confined to bed, therefore, he had not been able to file a private complaint against co‑accused of petitioner who wrongly have been declared innocent by the police. He further submitted that challan in the case has since been submitted and the trial is about to start. Lastly, it is urged that Noor Muhammad was waylaid on the roadside and subjected to a concerted attack causing grievous injuries on the head and leg which indicates that the petitioner and his co‑accused wanted to take life of the complaint.

3. Having considered the facts and circumstances of the case in the light of submissions of learned counsel for the parties I find that the grievous head injury has been specifically and consistently attributed to the petitioner in the report made immediately after the occurrence at the police station though recorded in its daily diary and that the complainant was operated upon for both his head and leg injuries found to be grievous. Noor Muhammad complainant has appeared today who walked into the Courtroom with difficulty and with the help of crutches. In these circumstances, without expressing as to the merits of the case lest it should affect either party's case adversely, I do not think it is a fit case for the grant of bail as there appear reasonable grounds to believe that the petitioner is guilty of committing non‑bailable offence. It is not correct to say that if an accused is charged with a non‑bailable offence not falling under prohibitory clause then he can claim bail as of right. It is so only in bailable offences.

4. For all these reasons this petition fails, however, the petitioner shall be at liberty to move the Court concerned as and when any fresh ground is available. S.A. Bail refused.