ABDUL GHANI Versus NUR JAHAN

ORDER

1. The circumstances bearing on this application under section 498, Cr.P.C. for grant of anticipatory bail are stated as below:‑

2. On 11th September, 1977, case for the offence of rioting and causing grievous hurt, etc. under section 324/325/148/149, P.P.C. was registered against the petitioner and four others at the instance of Nawab Din, an eye‑witness in the case. The accused armed variously had allegedly dealt several injuries to Faqir Muhammad a real brother of Nawab Din following two injuries caused to Faqir Muhammad with sharp‑edged weapon (hatchet) have been ascribed to the petitioners:‑

(i) Incised wound 1" x " scalp deep at top of front of the head.

(ii) Incised wound " x " x " at the front of left foot.

3. Both these injuries were declared simple. However, a couple of injuries caused with blunt weapon were under left humerus and left radius were fractured and were declared grievous. The accused were arrested by the police and were on 27th September, 1977 admitted to bail by learned Sessions Judge, Gujranwala. The contention raised on behalf of the petitioner that the case did not fall within the purview of subsection (1) of section 497, Cr.P.C. as the charges against the accused were not punishable with life/10 years imprisonment was upheld. Subsequently, charge under section 307, P.P.C. was added by the police on 6th October, 1977. Muhammad Akram and Muhammad Akbar accused were arrested under the modified charge. The remaining three accused namely, Muhammad Aslam (petitioner), Muhammad Latif and Abdullah succeeded in reaching the Court of learned Sessions Judge with application for grant of anticipatory bail. All the five accused were allowed bail ad interim which was eventually not confirmed and the application was rejected by the learned Sessions Judge. The reasons which had weighed with the learned Sessions Judge are that a specific motive had been attributed to the accused for attack on Faqir Muhammad which was premeditated as a result of which he had suffered seven injuries in all, two injuries were declared grievous, he was in a serious condition when examined by the doctor and the accused had proclaimed at the site that Faqir Muhammad be done to death. Learned Sessions Judge was also of the view that the case should have been initially registered against the accused under section 307, P.P.C. However, a rider was added that he need not go into the merits of the newly‑added charge against the accused.

4. Learned counsel for the petitioner contended vehemently that the police had on sheer ulterior considerations added charge of attempted murder under section 307, P.P.C. so as to countermand a solemn judicial order releasing the accused on bail. The ingredients of section 307, P.P.C. were not satisfied. Faqir Muhammad who was empty‑handed was entirely in the hands of the accused. He would have suffered more serious and a larger number of injuries if the accused had the intention to kill him. The hatchet was allegedly wielded by the petitioner with the slightest force or injury No. 1 would not have been merely scalp deep and injury No. 7 should have been more deep. The fact that Faqir Muhammad had fractured his left arm will not dislodge the above view or the sections dealing with the offences of causing grievous hurt will become redundant. Every case of grievous hurt should not be treated as case of attempted murder. The fact that the grievous injuries on the person of Faqir Muhammad were not capable of causing death in the ordinary course of nature which may or may not be the sole determining factor for application of section 307, P.P.C. may not be lost sight of altogether. The case, therefore, does not fall under subsection (1) of section 497, Cr.P.C. The accused had been rightly admitted to bail by the learned Sessions Judge on 27th September, 1977. Normally in such cases bail could not be withheld by way of punishment even though facts of the case may predominantly form a clear pointer towards the guilt of the accused.

5. As against it learned State counsel raised a single argument in reply that the charge was punishable with life imprisonment. In such cases accused could not be released on bail even after arrest unless he could show demonstrably that there were no reasonable grounds for believing that he was guilty of charge punishable with life imprisonment and the case falls under subsection (2) of section 497, Cr.P.C. or he could claim benefit of proviso to subsection (1) different considerations applied to the question of grant or otherwise of anticipatory bail which was extraordinary remedy.

6. On a careful consideration I feel inclined to lean in favour of the contentions raised on behalf of the petitioner, particularly the argument that the accused can be punished for what he may have done and not for what he might have done. There is no dispute with the argument that a considered opinion on merits of the charge against the accused must always be avoided at this stage. However, a provisional find objective assessment of facts of the case incidental to 1B grant of relief in such application is permissible. The question whether or not the accused were guilty of attempted murder for having caused injuries to Faqir Muhammad is not free from doubt at this stage, which doubt should be resolved in favour of the accused. Therefore, the petitioner should not be declined the benefit of order, dated 27th of September, 1977 of the learned Sessions Judge releasing the accused on bail. The application is accepted and interim bail of they petitioner is confirmed.

7. The petitioner was not allowed interim bail when the petition was admitted to hearing by his Lordship Mr. Justice Mazhar ul Haq. He will furnish fresh bail bond in the sum of Rs. 5,000 (five thousand) with two sureties with personal bond in the same amount to the satisfaction of the trial/Duty Magistrate, Gujranwala.

8. SA./M‑1035/L Bail granted.