IRFAN Versus State
AHMAD ALI, J .---Being unsuccessful in getting concession of bail from the Court below in case FIR No.1518 dated 25.06.2019 under sections 337-F(ii), 337 A(iv), P.P.C., Police Station Chamkani (Peshawar), the petitioner (Irfan), through the instant petition, has prayed this Court for the same relief.
2. The prosecution story, as unfolded in FIR, is that, the complainant Noor Rahman accompanied by his brother reported the matter in injured condition at LRH, Peshawar to the effect that owing to a land dispute with his step nephews, on the eventful day, the accused-petitioner (Irfan) along with co-accused came to the place of occurrence and started digging foundations on which some hard words were exchanged. The accused started beating him with spade and his brother Ismail was also beaten with iron rod and got injured. Initially report of the complainant was incorporated in shape of DD No.7 dated 10.06.2019 and, on receiving the medico legal report of the injured, the instant case registered against the accused. The accused is behind the bars since his arrest, therefore the bail petition in hand before this Court.
3. Arguments heard and the record perused with the able assistance of learned counsel for the parties.
4. A thorough sifting of the record reveals that the occurrence took place on 09.06.2019 at 20:50 hrs, report was made by the complainant, which was incorporated in shape of Mad No.07 dated 10.06.2019 at about 00:45 hours with a delay of about 3 hours and 45 minutes, while complainant was medically examined at 9:55 p.m. on 09.06.2019 produced by the ASI to the Doctor. The MLC report does not show any fracture and the kind of weapon of offence was stated to be blunt. The MLC of other injured shows that he was also produced before the Doctor by the ASI on 09.06.2019 at 9:50 and kind of weapon is mentioned as blunt. Admittedly, the occurrence took place at dark hours, but no source of light has been mentioned in the FIR. Initially, Section of law was mentioned as 337-F(ii) but later on, when complainant appeared before the Doctor on 12.06.2019, this time, it was reported that there is fracture in nasal bone of one of the injured, namely, Ismail Khan and also fracture in the left shoulder joint of the injured (Noor Rahman/ complainant).
5. It is pertinent to mention here that section 337 F(ii) was inserted in the instant case by the APP with the approval of DPP, Peshawar on 25.06.2019 but later on, through an information, the section of law i.e. 337-F(ii) was deleted and section 337-A(iv) and section 337-F(iv) were inserted on 09.11.2019 after five months of the occurrence.
6. In the instant case 04 persons were charged, but section 34, P.P.C. has not been mentioned by the police. No Crime weapon was recovered.
7. Moreover, when both the injured were produced by the ASI on the same date and same hrs then why the injured had not made the report at that time which leads the case of accused to further enquiry. Besides, section 337-N(2), P.P.C. provides the punishment in all cases of hurt mentioned in Chapter-16 as "Daman" if the accused were not previously convicted and hardened/desperate criminals. So, keeping the accused behind the bars will not serve any useful purpose for the prosecution and the accused could not be kept behind the bars for indefinite period just for the satisfaction of vanity of the complainant. Reliance is placed on 1998 SCMR 1528 titled "Haji Maa Din and others v. The State and another".
8. Moreover, grant of bail does not mean the acquittal of accused but it is mere change of custody of accused to the hands of sureties. Hon'ble Supreme Court of Pakistan in the case of `Syed Khalid Hussain Shah' reported as 2013 PSC (Cr1.) 585 held:
"When ultimate conviction, if any, repairs the wrong caused by mistaken relief of bail, it would be rather harsh and even unjust to decline bail to the petitioner in a case entailing a sentence which may extend to 10 years."
9. This court in the case of Qazi Hazrat Ali and 2 others v. The State and another reported as PLD 2013 Peshawar 120 after exhaustive discussion held that when an accused became entitled to grant of bail then bail was not a favour but became his right, which could not be refused on any other ground much less hypothetical one.
10. Needless to mention, the above observations are tentative assessment for the disposal of present bail petition and not intended to influence the trial of case, learned trial court is free to appraise the evidence strictly according to its merits and the law.
11. Keeping in view the facts and circumstances of the case, the accused/petitioner, named above, is entitled to the concession of bail at this stage. The bail petition is, therefore, allowed and he is admitted to bail, provided he furnishes bail bonds in the sum of Rs.100,000/-(one lac) apiece with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.
12. Above are the detailed reasons of my short order of even date.
SA/328/P Bail granted.