Abdul Qayyum and another vs The State and another
This petition for pre-arrest bail arises from FIR No. 665/16 registered at Police Station Sadar Sargodha for offences under sections 337A(ii), 337F(i), 337F(iv), and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to confirmation of pre-arrest bail given the circumstances of the case, including the nature of the injuries and the petitioners' criminal history. The Court confirmed the pre-arrest bail, holding that the unexplained seven-day delay in FIR registration, the injured party's failure to appear before the Standing Medical Board, and the fact that the petitioners were previous non-convicts and not hardened criminals favored the grant of bail. Furthermore, the Court noted that recovery of weapons was irrelevant due to the lapse of time. The key principle laid down is that under Section 337N(2) of the Pakistan Penal Code 1860, additional punishment of ta'zir is reserved for previous convicts or hardened, dangerous, or desperate criminals, or offences committed on the pretext of honour, none of which applied to the petitioners.
- Does an unexplained delay in the registration of an FIR constitute a ground for granting pre-arrest bail?
- Under what circumstances can additional punishment of ta'zir be awarded in cases of hurt under the Pakistan Penal Code 1860?
- Is the recovery of weapons relevant for the purpose of denying pre-arrest bail after a significant lapse of time from the occurrence?
- Can a person be denied pre-arrest bail solely for the purpose of effecting recovery of weapons?
- Section 498, Code of Criminal Procedure 1898
- Section 337A(i), Pakistan Penal Code 1860
- Section 337A(ii), Pakistan Penal Code 1860
- Section 337F(i), Pakistan Penal Code 1860
- Section 337F(iv), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 337N(2), Pakistan Penal Code 1860
Through this petition under section 498 Cr.P.C. the petitioners have sought pre-arrest bail in case FIR No.665/16, dated 24.11.2016 registered at Police Station Sadar Sargodha in respect of offences under sections 337A(ii), 337F(i), 337F(iv), 34 PPC.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance.
This is bail before arrest and only tentative assessment is required at this stage. It has been noticed by this Court that although petitioners are named in FIR, yet the fact remains that there is an unexplained delay of seven days in registration of FIR, which prima facie shows that the FIR has been got registered after due deliberation and consultation. In FIR, Abdul Qayyum petitioner has been assigned the role of causing injuries on head and right little finder of Mst. Tanveer Bibi injured, but admittedly Mst. Tanveer Bibi injured was summoned thrice by the Standing Medical Board, constituted on the application of Abdul Shakoor under the order dated 28.11.2016 of learned Magistrate Section-30 Sargodha for her medical re examination but she did not appear before the Standing Medical Board. Adverting to the case against Abdul Shakoor petitioner , he has been assigned the role of causing injuries on left calf and head of the complainant. It has been noticed by this Court that the injury on left calf of the complainant falls under section 337F(i) PPC which is bailable offence, whereas the injury on head of complainant does not reflect that bone is exposed, so the question as to whether provisions of offence under section 337A(i)
PPC, which is bailable in nature, are attracted instead of section 337A(ii) PPC shall be determined by the learned trial court at an appropriate stage. Admittedly the petitioners are previous non-convict; neither they are hardened, dangerous, desperate criminals nor have committed the alleged offence on the pretext of honour , therefore, section 337N(2) PPC also comes to their rescue, which is reproduced as under:- 337-N. Cases in which qisas for hurt shall not be enforced: (2) Notwithstanding anything contained in this Chapter , in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of honour] Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour .
The above quoted provision of law clearly depicts that additional punishment of imprisonment as ta'zir can only be awarded to a person, who is previous convict or hardened, dangerous, desperate criminal or he has committed the offence on the pretext of honour , but all these elements are missing in this case . The person of the petitioners cannot be handed over to police only for the purpose of effecting recovery , which otherwise has lost relevancy with the passage of time as occurrence in this case took place on 17.11.2016. In such situation, recovery of weapons of offence after the lapse of more than two and half months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349 . It is settled law that the questions of sharing common intention and vicarious liability of the petitioners in the commission of alleged occurrence shall be determined by learned trial court after recording evidence. The petitioners have already joined the investigation, which is complete to their extent, therefore, no useful purpose would be served by sending them behind the bars so as to enable them to come out of jail on post-arrest bail after few days.
3. For what has been discussed above, keeping in view the provisions of section 337N(2) PPC, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioners vide this Court's order dated 10.01.2017 is hereby confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety in the like amount to the satisfaction of learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.