AZIZ and 2 others vs STATE
This is a criminal bail application before the Sindh High Court where the applicants sought pre-trial release in Crime No. 176 of 2005 registered at Police Station A Section Kandhkot for offences under Sections 337-A(ii), 337-F(v), 337-A-I, 337-P-I, 147, 148 of the Pakistan Penal Code 1860. The core legal question was whether post-arrest bail ought to be granted to accused persons charged with offences not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 when exceptional circumstances for refusal are absent. The court held that since the offences carried punishments of five years or less and thus fell outside the prohibitory clause, and none of the exceptional circumstances outlined by the Supreme Court—such as risk of abscondence, tampering with evidence, repetition of the offence, or previous conviction—were present, the grant of bail was the rule and refusal the exception. The High Court consequently set aside the trial court's order and granted bail to the applicants subject to surety, reinforcing the principle that bail in such non-prohibitory offences should not be refused arbitrarily.
- Whether bail should be granted as a rule in offences not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- What are the exceptional circumstances recognized by the superior courts for refusing bail in offences punishable with imprisonment for less than ten years?
- Does an unexplained delay in lodging the first information report justify the refusal of bail when the offences do not fall within the prohibitory clause?
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. The applicants seek their release on bail in Crime No. 176 of 2005 of Police-Station "A" Section Kandhkot, for offences under Sections 337-A(ii), F(v), A-I, P-I, 147, 148, P.P.C.
2. The allegation in the F.I.R. against the applicants are that Aziz caused injury at the left arm and backside of the complainant from the backside of hatchet, Ghaffar caused injury by Lathi to the right side of chest and backside of Abdul Ghani and Aijaz caused injuries by Lathi to the left shoulder of Sonari and further that all the accused persons caused kicks, fits and Lathi blows to the complainant and other injured.
3. The bail application was moved before the trial Court who refused bail on the ground that the names of the accused appear in the F.I.R. with specific role supported by medical evidence and in the offence not covered by prohibitory clause the Court can ' decline the bail in exceptional circumstances.
4. Learned Advocate for the applicant submits that the complainant and all the -P.WS. are related to each other, the 8 days delay in lodging the F.I.R. has not been explained, the statement under Section 161, Cr.P.C. was recorded after eight days, the name of one co-accused Fayaz Golo was kept in Column No. 2 of the F I.R. and the version of complainant was disbelieved by the prosecution and above all the offences are not falling under the prohibitory clause and the hail is to be granted as a rule.
5. The learned Assistant Advocate-General submits that the applicants were arrested on 18-11-2005, Lathi was recovered from Aijaz and Ghaffar, the alleged injuries are fully supported by medical evidence and that all the injuries do not fall within the prohibitory clause of Section 497, Cr.P.C.
6. I have heard the learned counsel for the parties and perused the record made available before me.
7. The contention of the learned counsel for the applicant that eight days delay in lodging the F.I.R. has not been explained. The injured were referred to doctor on 6-11-2005 and the medical certificates were ready on 7-11-2005 whereas the F.I.R. was lodged on 14-11-2005 after seven days which was at all not explained. Similarly the statement of P.WS. were recorded after unexplained delay. The delay in lodging the P.I.R. itself is no ground for grant of bail, however, the delay can be considered with the other grounds. From the medical report it is clear A that all the injuries are punishable with five years or less and ordinarily the bail is to be granted as a rule. The learned trial Court is correct that the Court can decline the bail in recognized exceptional circumstances but in the order no exceptional circumstances has been mentioned. In the case reported as Tariq Bashir v. The State PLD 1995 SC page 34 the Honourable Supreme Court has laid down extraordinary and exceptional circumstances for refusing bail in the offences not falling under prohibitory clause of Section 497, Cr.P.C. In the, same reported case the Honourable Supreme Court has held as under:-- "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of hail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:-- (a)where there is likelihood of abscondance 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.
8. 'The present case does not fall within the exceptions laid down by the Honourable Supreme Court.
9. The learned trial Court should be careful in dealing with these type of cases and should not reject the bail only at his whims without taking into consideration the settled principles for refusal of bail in the matter punishable with imprisonment of less than 10 years.
10. Following the principal laid down in the above reported case, I am satisfied that the applicant has made out a case of grant of bail. The bail is granted to the applicant subject to furnishing surety in the sum of RS. 50,000 each and P.R. bond in the like amount to the satisfaction of trial Court.
11. The bail application is disposed of.