2006 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this application under section 497, Cr.P.C. the petitioner seeks post-arrest bail in a case F.I.R. No.231 of 2005, dated 7-2-2005, registered under sections 380/ 335/337-L(2), P.P.C. at Police Station Ghalib Market, Lahore on the statement of Maqsood-ul-Haq Butt, the complainant.

2. The brief facts as alleged in the F.I.R. are that the complainant was a retired Bank Executive Officer and about 64 years old. He was living in Kothi No.3-N, Gulberg-II, Lahore for the last one year. At a some distance of his residence, Shabbir Ahmad barber was running Ali Cutting Saloon near Ghaus-i-Azam, Gulberg-III, Lahore, who used to come for financial help. Some 11 months ago, he harrowed money from complainant. On latter's demand he promised to pay him Rs.200 per day, but after some time, he stopped payment even at the rate of Rs.100 per day. On 24-3-2005 at 10-00 p.m. Shabbir Ahmad and present petitioner had visited him and desired stay with him for the night, to which he agreed. Early in the morning after awakening, they both were not found present and they committed theft of Rs.13,000 along with ATM Card and Photostat copies of identity cards of his family members. On the following day at 4-00 p.m. he went to his shop and demanded his money. Thereupon Shabbir Ahmad barber and present petitioner caught hold of him from his arms and gave him fist blows on his mouth, forehead and left ear. Mubarik Khan and Sher Khan were also called by them, who gave him fist blows on his mouth, head, right ear, chest abdomen and ribs whereby he became seriously injured.

3. The learned counsel for the petitioner has contended that the complainant was not medically examined on 25-3-2005 as certified copy shows that he had been medically examined on 1-4-2005 and it appears that Medico-legal report is not genuine, which cannot be relied upon because there is cutting in the Medico-legal report; that Shabbir Ahmad co-accused is about 18/19 years of age, who was called for by the complainant to satisfy his lust and he made a complaint to Muhammad Aslam petitioner, who is about more than 50 years old and thereupon some altercation had taken place with the complainant, that during the course of investigation the offence under section 380, P.P.C. has been deleted, which shows that the occurrence had not taken place in the manner narrated by the complainant; that the petitioner is in jail and he is no more required by the police for further investigation; that even otherwise the occurrence had taken place at the spur of moment and the petitioner or the other co-accused were not armed with any weapon and only fist blows were attributed to them, and that it is a case, of further inquiry.

4. The learned counsel for the complainant assisted by the learned State Counsel has opposed this bail petition on the ground that petition for bail before arrest of the petitioner was dismissed by this Court vide order, dated 12-7-2005, but he was arrested on 7-11-2005 after about 4 months and due to his conduct he is not entitled for concession of bail; that the case falls within the ambit of prohibitory clause of section 497, Cr, P.C.; that the complainant his lost ability of hearing from his ear as the petitioner along with the co-accused had repeatedly given fist blows on his face and offence under section 335, P.P.C. is very much attracted in the present case; that there was no interpolation in date of M.L.R. as the complainant was medically examined on 25-3-2005 and final report was handed over by the doctor after receiving the final result of the injuries sustained by the complainant on 1-4-2005; and that the petitioner is also involved in another criminal case, who remained fugitive from justice and is not entitled to the concession of bail.

5. I have heard the learned counsel for the parties and perused the record with due care and caution.

6. The offence under section 380, P.P.C. has been deleted by the police during the course of investigation. From the perusal of F.I.R. it appears that the occurrence had taken place at the spur of moment as a result of some altercation between the parties. The accused party was not armed with any weapon and only fist blows on the person of the complainant were attributed to them. The motive behind this occurrence has remained shrouded in mystery. However, it has been argued that Shabbir Ahmad co-accused was aged about 18/19 and a "Hajjam" by profession while the complainant was 64 years of age and there was no possibility of friendship between them; that the complainant was residing separately from his other family members for the last one year in a hostel, which prima facie supports the defence version that he had called co-accused Shabbir Ahmad, who was a young boy to commit unnatural offence and Shabbir Ahmad being the resident of same locality had made a complaint to the present petitioner, who had restrained the complainant from causing undue harassment to the said Shabbir Ahmad. The possibility of false involvement of the petitioner as narrated by the learned counsel for the petitioner in the peculiar circumstances of the present case cannot be ruled out. Even otherwise, the occurrence appears to have taken place at the spur of moment. The petitioner was not armed with any weapon at the time of occurrence and only fist blows were attributed to him. Moreover, the perusal of .the M.L.R. shows that the complainant was medically examined on 1-4-2005, which subsequently after cutting had been changed from 1-4-2005 to 25-3-2005. All these facts are sufficient to hold that the petitioner has succeeded in making out a case of further inquiry covered by section 497(2), Cr.P.C. The petitioner is behind the bars for the last more than 2-1/2 months and his presence is no more required by the police. His further detention in jail will not serve any useful purpose for the prosecution. Allegedly, the petitioner had been involved in a case under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 in the year 1988, but he was acquitted from the said case. Mere registration of the said case is not sufficient to hold that the petitioner is a desperate and hardened criminal and on this ground bail cannot be refused to him as a punishment.

7. In view of above discussion, this bail petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of learned Judicial/Illaqa Magistrate. However, it is clarified that the observations made above arc only tentative assessment of the evidence collected by the police during the course of investigation and will not prejudice the case of either party during the trial. N.H.Q./M-29/L?????????????????????????????????????????????????????????????????????????????????? Bail allowed.