MAZHAR HUSSAIN vs THE STATE and another

ORDER

' EJAZ AFZAL KHAN, J.---This petition for leave to appeal has arisen out of the order dated 11-1-2012 of the Lahore High Court, Rawalpindi Bench, whereby the learned Judge in his chambers dismissed the application filed by the petitioner for grant of post arrest bail in a case registered against him and many others under sections 302, 324, 337-F(iv), 148 and 149, P.P.C. Vide F.I.R. No,177 dated 24-6-2011 in 'Police Station Jilt Rawalpindi.

2. Learned counsel appearing on behalf of the petitioner contended that the charge against the petitioner appears to be an outcome of exaggeration as the entire family has been roped in. He next contended that though the petitioner has been charged for inflicting an injury on the person of the complainant with right side of the hatchet but it appears to be doubtful when tampering in changing the nature of the injury from 'lacerated' to 'incised' is writ large on the face of the record, therefore, a case for further inquiry is made out. He further contended that even if it is assumed that the injury attributed to the petitioner is caused by sharp means, he is not likely to be awarded a sentence in terms of imprisonment in view of the proviso to section 337-N(2) of the P.P.C.

3. As against that the learned Additional Prosecutor-General appearing on behalf of the State assisted by the learned counsel for the complainant argued that the injury caused on the person of .The victim is incised but has been mentioned as lacerated due to inexperience of the Medical Officer. He next contended that the petitioner being a member of unlawful assembly appears to be vicariously responsible for the murder of Mst. Hameeda Sultana even if the nature of the injury, on account of some correction in the medico legal report, is open to any doubt. The learned Additional Prosecutor-General next contended that when trial has commenced and is likely to be concluded within a couple of months, expression of opinion at this stage may prejudice the case of either of the' sides .

4. We have examined the entire record carefully and considered the submissions of the learned.

Counsel for the parties.

5. The record reveals that the petitioner is not charged for firing any shot at the deceased. He is charged only for inflicting an injury on the head of the deceased with sharp side of the hatchet. The said injury in the first instance was mentioned as lacerated but then changed as incised. What is the nature of the injury -in view of the background mentioned above; whether charge, in the matrix of the case could be held to be exaggerated; whether the petitioner in view of the role assigned to him, could be held to be vicariously responsible for the murder of Mst. Hameeda Sultana and whether he could be awarded sentence in terms of imprisonment in view of the proviso to section 337-N(2), when so far there is nothing on the record to show that he is hardened, habitual, dangerous or desperate criminal, are the questions requiring further inquiry. The fact that the petitioner has been in jail for almost 10 months would further tilt the scales of justice in favor of bail A rather than jail.

6. The argument that expression of an opinion at this stage may prejudice the case of either of the sides when the trial has commenced and is likely to be concluded within a couple of months, would not deter this Court from granting bail, when a case for further inquiry is made out.

7. For the reasons discussed above, we convert this petition into appeal, allow it and direct the release of the petitioner on bail subject to furnishing bail bonds in the sum of Rs,300,000 with two sureties to the satisfaction of the trial Court.