1998 PLP 892 (MLD)

Taj Mulk S/o Gulandar respondent No. 2 has charged the petitioners, namely, Sharafat and Baharuddin, (petitioners Nos. 1 and 2) for having committed an offence punishable under section 324/34, P.P.C. Vide: F.I.R. No. 219 registered in Police Station, Mathra, District Peshawar on 4-8-1997. He alleged that he was fired upon by the petitioners with lethal weapons with which he was hit on his left foot. He further stated that the occurrence was witnessed by his son namely, Niaz Ali.

2. After their arrest the petitioners Sharafat and Baharuddin were admitted u bail by Mr. Roohullah Khan, Judicial Magistrate Peshawar, Vide his Order dated 20-11-1997 However, the same was recalled by the Additional Sessions Judge-V, Peshawar (Mr. Muhammad Ayub Khan) Vide: his order recorded on 10-12-1997, mainly on the grounds that the petitioners were directly charged in the F.I.R. for having attempted at the life of the complainant by ring at him effectively with lethal weapons with which he was hit on his left 10t. The Addl: Sessions Judge was of the view that the medical evidence, available on the record, duly supported the version of the complainant as well as P.W. Niaz Ali (complainant's son) who had witnessed the occurrence. He, therefore, held that reasonable grounds did exist for believing that the petitioners lave committed a non-bailable offence and that the lower forum was not justified in allowing them bail. According to him the order of the lower Court was not only perverse but was also arbitrary which was accordingly recalled.

3. Mr. Salahuddin Advocate learned counsel for the petitioners assisted by Mr. Khaliquz Zaman, Advocate and Mr. Abdul Qayum Sarwar Advocate learned counsel for the State present and heard.

4. The learned counsel for the parties have admitted and rightly so that the injury sustained by the complainant/respdt. No. 2 on his foot, simple in nature, as declared by the Medical Officer. In the circumstances, therefore, the petitioners' case would apparently fall within the mischief of section 337-F, P.P.C. The punishment for various hurts under section 337-F, ranges from one Year to 7 years R.I. as Tazir.

5. I agree with the Additional Sessions Judge, Peshawar that a person who is charged for having committed a non-bailable offence is not entitled to be released on bail as a matter of right but it has escaped the notice of the Additional Sessions Judge that grant of bail in offences punishable with imprisonment for less that 10 years is a rule and refusal an exception. The exceptional and extraordinary cases where bail is declined are:-- (a) Where there is likelihood of abscondence of the accused; (b) Where there is. apprehension of the accused tampering with the Prosecution evidence; (c) Where there is danger of the offence being repeated if the accused is released on bail: and (d) Where the accused is a previous convict.

6. In holding the above view I am fully supported by a case supported by a case decided by the Hon'ble Supreme Court of Pakistan i.e., Tariq Bashar and others v. The State, reported in PLD 1995 Supreme Court 34.

7. Since the petitioners are not previous convicts, there is no danger of their repeating the offence in question and there is no apprehension of their absconsion or tampering with the Prosecution evidence, I would, therefore, admit them all to bail. They shall be released forthwith, if not required in any other case, provided each one of them deposit Rs. 10,000 (Rs. ten thousand), as bail amount, in this Court. H.B.T./17/Pesh Bail granted.