FAYYAZ alias BAGGI vs THE STATE and another
This matter comes before the Lahore High Court through a post-arrest bail petition filed by Fayyaz alias Baggi in case F.I.R. No. 316 registered under sections 337-F(v)/148/149 of the Pakistan Penal Code at Police Station Mandi Ahmad Abad, District Okara. The core legal question concerns whether the petitioner is entitled to post-arrest bail given the nature of the injuries attributed to him and the statutory prohibitions under the Code of Criminal Procedure. The court held that since several injuries attracted bailable offences and the remaining offences did not fall within the prohibitive clause of section 497 of the Code of Criminal Procedure, and considering the period of incarceration already undergone and the principle that bail is not to be withheld as a punishment in advance, the petitioner made out a case for bail. The petition was accordingly accepted subject to the furnishing of surety bonds. The key principle laid down is that the grant of bail is a rule and refusal an exception in cases where offences do not fall within the prohibitory clause, and pre-trial detention ought not to be used as a premature punitive measure.
- Whether post-arrest bail should be granted when the offences charged do not fall within the prohibitive clause of section 497 of the Code of Criminal Procedure?
- Does the commencement of the trial operate as an absolute bar to the grant of bail to an accused person?
- Is bail to be withheld as a form of preventive punishment in advance of trial?
- Section 337-F(v), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' CH. IFTIKHAR HUSSAIN, J.-- Petitioner Fayyaz alias Baggi by way of the instant petition has prayed for bail after-arrest in case F.I.R. No. 316 registered under sections 337-F(v)/148/149, P.P.C. With Police Station Mandi Ahmad Abad, District Okara on 13-10-2009.
2. Briefly the prosecution case as per the F. I. R. Is that on 6-10-2009 at about 5-00 P.M. He (petitioner) armed with Daang, Talib armed with Sota along with three unknown persons in prosecution of the common object of the unlawful assembly formed by them, in the absence of the complainant, have entered his house, where her daughter Mst. Sakina Bibi was present. She tried to oust them out of the same. He (petitioner) gave a Daang blow hitting her head. Talib gave a Sota blow hitting on her forehead. He (petitioner) again gave Daang blow, which hit her nose. The unknown persons gave butt blows on the various parts of her body. They dragged her and torn her wearing clothes. It was on account of a quarrel, which took place about few days prior to the present occurrence between the womenfolk of the parties.
3. After hearing the learned counsel for the parties and going through the record, I find that the prosecution allegation against him, even if may be taken to be true, Injury Nos. 1 and 2 of the daughter of the complainant have been declared as Shajja-e-Khafifa and the three remaining Ghair Jaifa Daima. Injury No. 3 was kept under observation. It on 8-10-2009 was declared as Shajja Hashima. It was found to be the fracture her nasal bone. I may mention here that her Injury Nos. 1, 2, 4 and 5 have attracted an offence under sections 337-A(i) and 337-F(i) P.P.C. And the same is bailable. The rest of the injuries attracted an offence not falling within the prohibition contained in section 497, Cr.P.C. In the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), it has been held by their lordships in the august Supreme Court of Pakistan that grant of bail in such like cases is a rule and refusal an exception. He is statedly behind the bars since 30-10-2009. The period of his detention, thus, comes to about six months. It is also worth-mentioning here that bail is not to be withheld as punishment in advance. According to the learned counsel for the parties, his trial has commenced. Even if the position may be so, then according to the case of Muhammad Ismail v.
Muhammad Rafique and another (PLD 1989 SC 585), such thing cannot come in his way to the same. I, therefore, find that he has succeeded in making out a case for bail. The petition, therefore, is accepted and he (petitioner) is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
4. I may observe here that the above observations are tentative in nature and meant only for the disposal of the instant matter and the same shall not prejudice the mind of the learned trial Court while deciding the case ultimately.