FALAK SHER Versus State
ORDER
ABDUL SAMI KHAN, J.--- After arguing the case at length, learned counsel for the petitioners opted to withdraw this petition to the extent of Saeed Ahmad petitioner at Sr. No.3 so as to surrender him before the investigating officer, therefore, this petition to the extent of Saeed Ahmad petitioner No.3 is dismissed as having been withdrawn and the ad interim pre-arrest bail already granted to him is recalled.
2. Through this petition under section 498, Cr.P.C. Falak Sher; Kaleem Haider, Jahangir and Mulazim Hussain petitioners have sought pre-arrest bail in case FIR No.237/16 dated 01.07.2016 under sections 452, 337-A(i), 337-A(iii), 337-F(v), 337-L(2), 354, 379, P.P.C. (later on sections 337-F(v) and 379, P.P.C. deleted), registered at Police Station Ravi, District Okara.
3. 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 the petitioners are named in FIR, yet the fact remains that there is a delay of nine days in registration of the FIR, which has not been explained therein which prima facie shows that the FIR has been got registered after due deliberation and consultation. The injury falling under section 337-A(iii), P.P.C. has been specifically attributed to Saeed Ahmad co-accused and sections 337-F(v) and 379, P.P.C. have been deleted, whereas the remaining injuries admittedly fall under sections 337-A(i) and 337-L(2), P.P.C., which are bailable offences. So far as the question in respect of attraction of offence under section 452, P.P.C. is concerned, the same shall be determined by the learned trial court at an appropriate stage. Even otherwise, it is an admitted position of the case that the petitioners are previous non-convict; neither they are hardened, dangerous, desperate criminals nor they have committed the alleged offence on the pretext of honour, therefore, section 337-N(2), P.P.C. 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 for 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 21.06.2016. In such situation, recovery of weapons of offence after the lapse of about four 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 vicarious liability of the petitioners in the commission of alleged occurrence shall be determined by the learned trial court after recording evidence. The petitioners have alread 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.
4. For what has been discussed above, keeping in view the provisions of section 337-N(2), P.P.C., this petition is allowed and the ad interim pre-arrest bail already granted to Falak Sher, Kaleem Haider, Jahangir and Mulazim Hussain petitioners vide this Court's order dated 25.10.2016 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.
5. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.
WA/F-25/L Petition allowed.