ISFANDYAR vs THE STATE through Additional Advocate General and anothers
This is a criminal petition filed by Isfandyar seeking post-arrest bail after his similar pleas were rejected by the lower courts in a case registered under sections 337-A(ii)/34 of the Pakistan Penal Code 1860 at Police Station Kalakot. The core legal question was whether the petitioner was entitled to post-arrest bail given that the offense did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and that the investigation was already complete. The Peshawar High Court held that since the offense carried a punishment of up to five years, the case did not fall within the prohibitory clause, making the grant of bail a rule and its refusal an exception. Furthermore, the court held that the submission of the challan or commencement of trial is no ground for refusing bail if the case warrants further inquiry. The petition was consequently accepted, and the petitioner was granted bail subject to furnishing appropriate sureties.
- Whether bail should be granted as a rule when the alleged offense does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does the submission of a challan or commencement of trial constitute a valid ground for the refusal of bail?
- Is an accused entitled to post-arrest bail when the investigation is complete and he is no longer required for further investigation?
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
' ASSADULLAH KHAN CHAMKANI, J.---Isfandyar has applied for bail after he failed to secure his such relief from the courts below, being involved in case F.I.R. No, 237 dated 5-7-2012 under sections 337- A(ii)/34, P. P.C., registered at Police Station Kalakot, on the charges that he along with his co- accused on 23-6-2012 at 08.00 hours caused injuries to the complainant on his head and other parts of his body.
2. Learned counsel for the petitioner argued that accused/petitioner is innocent and has falsely been involved in the case; that besides the inordinate delay in lodging of the report, as per affidavits submitted by the alleged eye-witnesses, mentioned in the first report, namely Najib Ullah and Fazal Aziz, they have not supported the version of the prosecution, therefore, the, case of the petitioner requires further probe into his guilt. He further argued that the petitioner is an old man and is of infirm physique and the offence for which the petitioner is charged also does not fall under the prohibitory clause of section 497, Cr.P.C, therefore, the petitioner deserves to be released him on bail.
3. As against this, learned counsel for complainant and learned State Counsel appearing on behalf of the State argued that the accused/petitioner is directly charged by the complainant with specific role for causing injury on his head and Medico-legal Peport and other material available on the file also support the version of the complainant, therefore, at this stage of the case, he is not entitled to the concession of bail.
4. Arguments heard and record perused.
5. Without discussing other merits of the case which may prejudice the case of either side, suffice it to say that the offence for which the petitioner is charged, if proved, entailing punishment which may extend to five years and may also liable to fine, and it is now settled that an offence which carries punishment upto ten years or less then the grant of bail is a rule and refusal thereof is an exception. Moreover, the petitioner is behind the bars for about two months and investigation in the case is complete and the petitioner is no more required for further investigation. The learned State Counsel pointed out that as on 31-7-2012 the case was put in court, therefore, the petitioner, at this stage of the case, is not entitled to the concession of bail but his such arguments is not convincing as mere the commencement of trial before the Court . Or submission of Challan before the Court is no ground for refusal of bail if case of the accused is otherwise of further inquiry within the ambit of subsection (2) of section 497, Cr.P.C. Reliance in this regard can be placed on the case of "Muhammad Ismail v. Muhammad Rafique and another, PLD 1989 SC 585.
Consequently, this application is accepted and the petitioner is released on bail in case he furnishes bail bonds in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.
Cited by 2 cases
- MUHAMMAD ISLAM vs The STATE and other 2018 MLD 90
- JAMIL-UR-REHMAN vs The STATE and another 2015 MLD 1799