ZIA ULLAH vs THE STATE
The petitioner sought post-arrest bail in a case registered under sections 324 and 34 of the Pakistan Penal Code 1860, for allegedly causing a firearm injury to the complainant. The core legal question was whether the petitioner was entitled to post-arrest bail considering the statutory period of incarceration, the applicability of the prohibitory clause under Section 497 of the Code of Criminal Procedure 1898, and the nature of the injury attracting section 337-F(vi) of the Pakistan Penal Code 1860. The Lahore High Court allowed the petition and admitted the petitioner to post-arrest bail, holding that the offense fell outside the prohibitory clause and noting the unlikelihood of the trial concluding in the near future alongside other mitigating factors. The key principle laid down is that where the offense does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and the trial has not commenced after a significant period of incarceration, bail should generally be granted as a matter of right.
- Whether post-arrest bail should be granted when the offense falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does undue delay in the commencement of the trial constitute a valid ground for the grant of bail?
- Whether the applicability of Section 324 versus lesser hurt sections requires further inquiry when the seat of injury is on a non-vital part of the body?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 337-F(vi), Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
- Section 458, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
ORDER
' Petitioner seeks post-arrest bail in case registered vide F.I.R. No.16 of 2004, dated 2-2-2004 under sections 324/34, P.P.C. At Police Station Head Rajgan District Bahawalpur.
2. As per F.I.R. Petitioner has allegedly caused an injury on right thigh of the complainant with his .30 bore pistol in presence of the P. Ws.
3. Learned counsel for the petitioner vehemently argues that the petitioner is behind the bars for the last more than seven months and the trial has not yet commenced, even the copies of the statements of P.Ws. Recorded under section 161, Cr.P.C. Have not been supplied and there is no likelihood of commencement of the trial in near future; that the alleged injury on the right thigh of the complainant (refers to his MLC) falls within the mischief of section 337-F(vi), P.P.C. And punishment for the same is 7 years, thus, Prohibitory clause of section 497, Cr.P.C. Is not attracted; that it is yet to be determined particularly keeping in view the seat of the injury as to whether section 324, P.P.C. Can be made applicable; that the complainant is a professional criminal involved in a number of cases of theft and dacoity; reference has been made to F.I.R. No.132 of 2002 under sections 392, P.P.C. Police Station Head Rajgan and F.I.R. No.133 of 2002 under sections 458, 380, 411, P.P.C.; that one of the alleged eye-witnesses namely Abdul Malik, through his affidavit has not supported the prosecution version as stated in the F.I.R. And second alleged eye-witness is a real brother of the complainant; that the petitioner does not have any previous history of his involvement in such-like cases.
4. Though, the factual position of the case has not been vehemently opposed by learned counsel for the State, yet, it is submitted by him that the challan has already been submitted and it would be in the fitness of things and fairplay if a direction be issued to the learned trial Court to conclude the trial expeditiously.
5. All the above factors taken together persuade me to allow this petition. Resultantly, the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rs.One lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.