MUHAMMAD IDREES Versus State

ORDER

Petitioner was refused post-arrest bail by the learned Magistrate on 13-9-2004 and learned Additional Sessions Judge on 12-10-2004 in case registered against him vide F.I.R. No.388 dated 20-8-2004 under sections 337-A(i)/337-F(i)/337-F(vi)/34, P.P.C. with Police Station Gujar Khan, District Rawalpindi. He has now filed instant petition for the same relief.

2. Learned counsel for the petitioner submitted that petitioner is absolutely innocent and has been involved in a false case. According to him, the only grievous injury on the person of the complainant is on left hand index finger, which can be inflicted by friendly hand. It was further submitted that case of the petitioner is not covered by prohibitory clause of section 497, Cr.P.C. and that in spite of lapse of about five months, no offence has so far been recorded by the trial Court and there is no chance of conclusion of the trial in near future. Case of the petitioner was said to be that of further inquiry.

3. Bail was opposed by the learned counsel appearing on behalf of the State who was assisted by the learned counsel for the complainant with the arguments that the complainant who is real brother of the petitioner was given beating mercilessly causing injuries on his face and legs. According to them, the complainant was to leave for Saudi Arabia, where he was employed, but the petitioner under premeditation launched assault so that the complainant may not proceed abroad just to satisfy his inner hatred against his brother. It was also submitted that the petitioner being the main accused is not entitled to bail as he caused grievous injury to the complainant and trial of the case having already commenced by framing of charge, no indulgence may be shown. It was also emphasized that petitioner earlier filed Criminal Miscellaneous No.1410-B of 2004, before this Court, but when assessed that bail will not be granted to the petitioner, the same was withdrawn on 11-11-2004, hence second petition on the same grounds is not maintainable.

4. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. No doubt petitioner earlier filed a petition for his post-arrest bail (Criminal Miscellaneous No.1410-B of 2004), but the same was withdrawn on 11-11-2004. Under law, withdrawal would mean that this petition was never filed. Even otherwise, second petition without decision on the first was maintainable in view of the judgment of the Honourable Supreme Court in the case of Muhammad Riaz v. The State (2002 SCMR 184). Complainant though sustained 12 injuries, but all of those are simple with blunt weapon except Injury No.7, which is grievous and being on index finger of the left hand, is not on vital part of the body. Infliction of this injury with a Danda or with some friendly hand shall be determined by the trial Court after recording of evidence, but at the present, it makes the case of the petitioner that of further inquiry. Parties are real brothers and the scuffle between them took place on a dispute of raising wall by the complainant, thus who out of them was aggressor is a matter which requires further inquiry. Offence under section 337-F(i), P.P.C. is punishable with two years R.I. whereas under section 337-F(vi), P.P.C. is punishable with seven years imprisonment. The Honourable Supreme Court in alike circumstances, wherein the injured suffered Shajjah-i-Mudihah, released the accused on bail in the case of Allah Rakha alias Bodi and another v. The State and another (1993 SCMR 1994). In spite of lapse of five months trial of the case has not commenced and further detention of the petitioner would not advance the prosecution case. Bail is not to be withheld as of punishment in view of the law laid down by the Honourable Supreme Court in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Petitioner will face the sentence if ultimately convicted by the trial Court at the conclusion of the case.

5. For the reasons noted above, petitioner has made out a case for his bail in the case registered against him pending its trial. This petition is accordingly allowed and the petitioner is admitted to bail subject to his furnishing surety bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of the trial Court.

N.H.Q./M-925/L Bail allowed.