2007 P Cr. L J 299
[Karachi
Before Nadeem Azhar
Siddiqi, J
AZIZ and 2 others----Applicants
Versus
THE STATE----Respondent
Criminal Bail Application No.S-40 of 2006,
decided on 14th March, 2006.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860),
Ss.337-A(i), (ii), F-(i), (v), 148 & 149---Bail, grant of---Unexplained
delay in lodging F.I.R. though itself was no ground for grant of bail, but such
delay could be considered with other grounds---Statements of prosecution
witnesses were also recorded after unexplained delay---Medical report showed
that all the injuries were punishable with five years or less and ordinarily
bail was to be granted as a rule in such-like cases---Court, though could
decline bail in recognized exceptional circumstances, but the case did not fall
within such exceptions---Trial Court should be careful in dealing with such
type of cases and should not reject the bail only at its whims without taking
into consideration the settled principles for refusal of bail in the matter
punishable with imprisonment of less than 10 years---Accused having made out
case for grant of hail, he was admitted to bail.
Tariq Bashir v. The State PLD 1995 SC 34 ref.
Deedar Ali Bhangwar for Applicants.
Mushtaque Ahmed Abbasi, Asstt. A.-G. for the
State.
ORDER
NADEEM AZHAR SIDDIQUI, J.--- The applicants seek their release on bail in Crime No.176
of 2005 of Police Station "A" Section Kandhkot, for offences under
sections 337-A(ii), F(v), A-I, F-I, 147, 148, P.P.C.
The allegation in the F.I.R. against the
applicants are that Aziz caused injury at the left arm and backside of the
complainant from the backside of hatchet, Ghaffar caused injury by Lathi to the
right side of chest and backside of Abdul Ghani and Aijaz caused injuries by
Lathi to the left shoulder of Sonari and further that all the accused
persons caused kicks, fits and Lathi blows to the complainant and other
injured.
The bail application was moved before the trial Court who refused bail on
the ground that the names of the accused appear in the F.I.R. with specific
role supported by medical evidence and in the offence not covered by
prohibitory clause the Court can decline the bail in exceptional circumstances.
Learned Advocate for the applicant submits that the complainant and all
the P.Ws. are related to each other, the 8 days delay in lodging the F.I.R. has
not been explained, the statement under section 161, Cr.P.C. was recorded after
eight days, the name of one co-accused Fayaz Golo was kept in Column No.2 of
the F.I.R. and the version of complainant was disbelieved by the prosecution
and above all the offences are not falling under the prohibitory clause and the
bail is to be granted as a rule.
The learned Assistant Advocate-General submits that the applicants were
arrested on 18-11-2005, Lathi was recovered from Aijaz and Ghaffar, the alleged
injuries are fully supported by medical evidence and that all the injuries do
not fall within the prohibitory clause of section 497, Cr.P.C.
I have heard the learned counsel for the parties and perused the record
made available before me.
The contention of the learned counsel for the applicant that eight days
delay in lodging the F.I.R. has not been explained. The injured were referred
to doctor on 6-11-2005 and the medical certificates were ready on 7-11-2005
whereas the F.I.R. was lodged on 14-11-2005 after seven days which was at all
not explained. Similarly the statement of P.Ws. were recorded after unexplained
delay. The delay in lodging the F.I.R. itself is no ground for grant of bail,
however, the delay can be considered with the other grounds. From the medical
report it is clear that all the injuries are punishable with five years or less
and ordinarily the bail is to be granted as a rule. The learned trial Court is
correct that the Court can decline the bail in recognized exceptional
circumstances but in the order no exceptional circumstances has been mentioned.
In the case reported as Tariq Bashir v. The State PLD 1995 SC page 34 the Honourable
Supreme Court has laid down extraordinary and exceptional circumstances for
refusing bail in the offences not falling under prohibitory clause of section
497, Cr.P.C. In the same reported case the Honourable Supreme Court has held as
under:--
"It is
crystal clear that in bailable offences the grant of bail is a right and not
favour, whereas in non-bailable offences the grant of bail is not a right but
concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two
categories i.e. (i) offences punishable with death, imprisonment of life or
less than ten years. The principle to be deduced from this provision of law is
that in non-bailable offences falling in the second category (punishable with
imprisonment for less than ten years) the grant of bail is a rule and refusal
an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:
(a) where there is likelihood of abscondance of the
accused;
(b) where there is
apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being
repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
The present case does not fall within the exceptions laid down by the
Honourable Supreme Court. The learned trial Court should be careful in dealing
with these type of cases and should not reject the bail only at his whims
without taking into consideration the settled principles for refusal of bail in
the matter punishable with imprisonment of less than 10 years.
Following the principal laid down in the above reported case, I am
satisfied that the applicant has made out a case of grant of bail. The bail is
granted to the applicant subject to furnishing surety in the sum of Rs.50,000
each and P.R. bond in the like amount to the satisfaction of trial Court.
The bail application is disposed of.
H.B.T./A-136/K Bail
granted
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