MUHAMMAD ASLAM KHAN vs MUHAMMAD RAFIQUE alias SHEENA and another
The applicant sought the cancellation of post-arrest bail granted to the respondent in a criminal case registered under sections 336 and 335 of the Pakistan Penal Code 1860, relating to an incident where the respondent allegedly struck the injured complainant's eye with scissors, resulting in the complete loss of the eye. The core legal question was whether the bail was properly granted by the trial court given the seriousness of the offence and the applicability of the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Sindh High Court held that the bail granted by the additional sessions judge was unjustified and against the principles of tentative assessment of evidence, as the offence fell under the prohibitory clause and involved serious injury. Consequently, the High Court cancelled the bail and ordered the respondent to be taken into custody. The key principle laid down is that bail in heinous or serious offences attracting the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 should not be granted lightly, and tentative assessment of evidence must be properly applied.
- Whether bail can be cancelled when granted by the trial court in disregard of the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does an offence causing the complete loss of an eye fall under Section 336 of the Pakistan Penal Code 1860 and attract the prohibitory clause?
- Can bail be refused to a juvenile above 15 years of age charged with a serious or heinous offence under the Juvenile Justice System Ordinance, 2000?
- Section 336, Pakistan Penal Code 1860
- Section 335, Pakistan Penal Code 1860
- Section 154, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 10, Juvenile Justice System Ordinance, 2000
ORDER
' MUHAMMAD SADIQ LEGHARI, J.---Through present application the applicant seeks cancellation of to Muhammad Rafique alias Sheena in a case registered against him as F.I.R. No.160 of 2004 at Shahra-e-Noor Jehan Police Station for offences under sections 336/335, P.P.C.
2. The prosecution case is that on 7-6-2004 at about 2-15 p.m. a quarrel took place between Muhammad Zaman the injured and Muhammad Rafique the respondent over some matter at Omer Colony. The respondent who is a tailor is alleged to have taken scissors and struck it on the right eye of Muhammad Zaman. The incident was reported to the police, who alter making entry, referred the injured to Jinnah Hospital. He lost his eye completely in the result of the injury. After issuance of the MLC the report entered into Roznamcha on the very day was incorporated under section 154, Cr.P.C. And the investigation started.
3. Muhammad Rafique approached the Sessions Judge, Karachi-Central for bail before arrest which attempt failed. He was then arrested and sent for trial. The same Judge (Mr. Muhammad Zareef, II-ADJ, Karachi-Central) granted him bail after arrest on 9-9-2004. That order has been asssiled through present application.
4. Mr. Saathi M. Ishauqe, Advocate appearing for the applicant has contended that the learned Additional Sessions Judge has shown undue indulgence in this matter while granting bail to the respondent after his clear observation against him in the earlier order on the application for bail before arrest. He referred to the passage from the earlier order wherein learned Judge- observed as under:-- "This piece of the evidence is sufficient prima facie to connect the appellant/accused for the commission of the offence punishable under section 336, P.P.C., which falls under the prohibitory clause of section 497(1), Cr.P.C."
5. Mr. S. Suleman Badshah, Advocate appearing for the respondent contended that the trial Court had granted bail to the applicant on the ground of age and merits. After grant of bail the Court referred him to the doctor for ascertaining his age and the opinion came that he was under 18 years of age. After that the same Court is exercising jurisdiction under Juvenile Justice System Ordinance, 2000. According to him a juvenile deserves the treatment different than the treatment to the ordinary accused. Even after conviction a juvenile is to be released on probation therefore it will be proper to allow the respondent to continue on the bail, which concession he has not misused since it was allowed to him.
6. I do not dispute the arguments relating to the age of the respondent. However it is also not disputed that he is above 15 years of age. Proviso to section 10 of the Juvenile Justice System Ordinance, 2000 permits the refusal of bail in case for serious or heinous offence provided there are reasonable grounds to believe him guilty of the charge. In present case the direct evidence of the injured himself is that it was the respondent Muhammad Rafique who struck scissors on his eye. It is also undeniable fact that the A victim lost his eye and as such the offence falls under section 336, P.P.C. Which is punishable with imprisonment up to 10 years. The offence is serious and the embargo put by section 497, Cr.P.C. Also attracted. Thus the by the learned II-Additional Sessions Judge, Karachi-Central (Mr. Muhammad Zareef Qureshi) was unjustified. It deserves to be mentioned here that he granted bail before declaring the respondent as juvenile. The reasons advanced by him are against the principles of tentative assessment of the evidence while dealing with the bail applications.
7. In view of the above the to the applicant is cancelled. Since the case is pending against him, he is taken into custody for sending him to jail with direction to produce before the learned trial Court.
8. Mr. S. Suleman Badshah, Advocate requests for permitting him to file bail application before the learned trial Court. In my opinion no such permission is needed as there stands no barrier in the way of making such application.
Bail cancelled.