2019 YLRN 71

RIZWANULLAH Versus State

Citation2019 YLRN 71

CourtGilgit-Baltistan Chief Court

Judge(s)Malik Haq Nawaz

ORDER

MALIK HAQ NAWAZ, J.--- The petitioner has been booked for the offence under sections 337-A(v), 341, 109/34, P.P.C. vide FIR No.29/2018 of Police Station Jal, District Diamer.

2. The post arrest bail of the petitioner was refused by the learned Additional Sessions Judge Diamer vide Judgment/order dated 05.04.2019. The petitioner being aggrieved from the said judgment has filed the instant Cr. Misc. bearing No.97/19, for post arrest bail.

3. The learned counsel for the petitioner submitted that the case is false and the petitioner has been falsely implicated in the case. Per learned counsel the co-accused namely Mehbobullah has been released on bail, by the learned trial Court and petitioner is also entitled for the same concession under the law of consistency. The learned counsel further submitted that the provisions of law imposed in the FIR are not attracted in the instant case. The petitioner is first offender, no more required for any further investigation and his detention in jail will not serve any useful purpose. The learned counsel relied as PLD 2017 SC 733, 2013 MLD 140 and 2000 PCr.LJ 626.

4. On the other hand the learned Dy. Advocate General and counsel for complainant hotly opposed the petition and submitted that the petitioner is directly charged in the FIR, and a specific role of causing fatal injury on the head of the victim is attributed to the petitioner. The case of co-accused was not identical to the petitioner, who was allowed bail by the learned trial Court. The offences levelled in the FIR, falls within the prohibitory clauses of section 497 Cr.P.C. and the petitioner/accused is not entitled for concession of bail. The learned counsel for the complainant relied on 2007 YLR 696 and 1999 PCr.LJ 1677.

5. The record reveals that the petitioner is directly charged in FIR, with a specific accusation that, he caused a fatal stone blow on the head of the victim. The punishment provided under section 337(V) is 10 years but the basic punishment is Arsh and the penal punishment is an alternate/additional punishment, which may extend to 10 years while the punishment provided under section 337(L) is upto 7 years. The punishment provided in the above offence does not fall within the prohibitory clause of Section 497, Cr.P.C., as the Court has to take into account the minimum punishment provided for an offence. Section 337(V), P.P.C. is re-produced as under:--

"Section 337(V), P.P.C.:

Shajjah-i-ammah to any person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to 10 years as tazir."

6. Bail is a discretion, which is always exercised keeping in view the peculiar circumstances of a case. The principals for grant/refusal of bail has been laid down in PLD 1995 SC 34, Wherein it has been held that grant of bail in the offences not falling within prohibitory clause of section 497, Cr.P.C. is rule and refusal is an exception. The exceptions mentioned therein are as under:--

"(a) Where there is likelihood of abscondence of the accused;

(b) Where there is apprehension of the accused tampering with the prosecution evidence;

(d) Where the accused is a previous convict."

7. The case of the petitioner does not fall within any exception mentioned above. The petitioner case is one of the further inquiries falling under section 497(2), Cr.P.C. The petitioner is admitted to bail subject to his furnishing a bail bond of Rs.10,00,000/- (Ten lac) with two solvent sureties in the like amount to the satisfaction of learned trial Court.

MQ/52/GB Bail allowed.