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Criminal Miscellaneous No. 2025/B of 1984, heard on 8th August, 1984.

‑‑‑Ss. 497/498‑‑Penal Code (XLV of 1860), Ss. 324, 326/34‑‑Bail‑ Cancellation‑‑Accused causing only one grievous injury on non‑vital part of body of injured and not causing any other injury to injured or any witness‑‑Case being tried by section 30 Magistrate who could award maximum punishment upto seven years plus fine‑‑Case of accused not covered by prohibitory clause of S. 497 , Cr. P.C. ‑‑Cancellation of bail by Court below, held, not correct‑‑Accused granted bail.

P L D 1977 S C 272; 1973 P Cr. L J 205; P L D 1975 Lah. 568 and 1981 P Cr. L J 723 ref.

1983 P Cr. L J 2010 rel.

‑‑‑Ss.497/498‑‑Penal Code (XLV of 1860), Ss.324/326/34‑‑Bail‑‑Principles for grant of anticipatory bail and bail after arrest‑‑Different.

Khunshid Alam for Petitioner.

Arif Iqbal Hussain Bhatti for the Complainant.

Haji Ubaid ur Rehman for the State.

The prosecution case in brief is that on 9‑5‑1984 there was some dispute between Shahadat alias Bagga petitioner and one Liaqat Ali but they were separated by Muhammad Hussain father of Meraj Din complainant. This was not liked by Shahadat alias Bagga petitioner. He, therefore, threatened Muhammad Hussain by saying that he would teach him a lesson. On 10‑5‑1984 at about 6 p.m. Meraj Din complainant was sitting alongwith his father Muhammad Hussain at the shop of Allah Ditta. Zakar Ali and Zulfiqar P.Ws. were also sitting, there. Suddenly Shahadat alias Bagga armed with a bughda (A heavy knife used by Butchers) and Arif Hussain armed with Dang came there. Arif challenged whereafter Shahadat accused gave a Bughda blow which fell on the knee of Muhammad Hussain. The injured started bleeding. The complainant and witnesses intervened, as a result of which the accused went away. The injured Muhammad Hussain was taken to Civil Hospital, Sheikhupura where he was admitted for treatment and examination. After the occurrence, the accused started pursuing the complainant for a compromise but did not succeed, whereafter the present case was registered on 11‑5‑1984. The petitioner apprehending arrest filed an application for his anticipatory bail which was dismissed on 23‑5‑1984 by the learned Additional Sessions Judge, Sheikhupura. However after about 12 days the petitioner was allowed bail after arrest by the learned trial Court on 4‑6‑1984. The complainant moved an application for the cancellation of bail which was accepted by the learned Additional Sessions Judge on 15‑7‑1984. Hence this petition.

2. It is contended by the learned counsel that the bail has been cancelled, firstly, for the reason that the learned Additional Sessions Judge had disallowed pre‑arrest bail to the petitioner, secondly that the injured remained in hospital for about 21 days and finally because the offence came within the Prohibitory Clause of section 497, Cr. P.C. The learned counsel argues that the principles for grant of bail before arrest and after arrest are different and as such the fact that anticipatory bail had been refused to Shahadat petitioner could not be considered a bar for allowing bail after arrest by the trial Court, especially when the grant of bail is discretionary matter. It is contended by the learned counsel that there was only one injury on the person of Muhammad Hussain P.W. The petitioner did not act in a cruel manner and in such like cases the grant of bail is a rule and maximum punishment only is not to be taken into consideration for deciding a bail matter. The precise argument of the learned counsel was that the case is being tried by a first class Magistrate who will be able to award at the most three years' R.I. if the present petitioner is found guilty. It is argued that even if this case is tried by a Magistrate with enhanced powers under section 30, Cr.P.C. then also maximum punishment that could be awarded by the trial Court would be seven years' R.I. It is, therefore, argued that the case of the present petitioner was not covered by the prohibitory clause of section 497, Cr. P.C. In support of this contention, the learned counsel has placed reliance on Ameer v. The State PLD 1977 SC 272, Ameer v. The State 1973 PCr.LJ 205, Muhammad Iltaf v. Nazir Ahmad PLD 1975 Lah. 568, Muhammad Yaqub v. The State 1981 PCr.LJ 723 and Abdul Hay uz Zafar v. The State 1983 PCr.LJ 2010.

3. The learned counsel for the complainant and the State have opposed this petition for bail.

4. I have considered the arguments of both the parties. In the instant case the petitioner Shahadat inflicted only one injury on the knee of Muhammad Hussain P.W. The injury was no doubt grievous but not on a vital part of the body. The petitioner did not cause any other injury to Muhammad Hussain or any witness. The case is being A tried by a Magistrate Section 3(T, Cr. P.C. who can award maximum punishment up to seven years' R.I. plus fine. In this view of the matter it could not be said that the case of the present petitioner is covered by the prohibitory clause of section 497, Cr.P.C. I have gone through the case‑law cited by the learned counsel for the petitioner. In the case of Ameer, it was held by the learned Judges of the Supreme Court that "even for purpose of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused". However the learned Judges did not pass any order regarding bail of Ameer petitioner but directed his counsel to renew the petitioner's application for bail in the High Court. After this order by the Supreme Court, the petition of Ameer came up for disposal in the High Court where bail was allowed by a judgment reported as 1973 P Cr. L J 205. It was held that "Courts are not supposed to keep in view only maximum sentence provided by law for deciding an application for bail on behalf of the accused".

5. In the case of Muhammad Iltaf, it was held that "cases in which maximum sentence may be imprisonment for life or 10 years' R.I. yet if circumstances of the case show that maximum sentence is not likely to be awarded, bail granted to the accused could not be cancelled".

6. In the case of Muhammad Yaqub, it was held that "normally bail is not to be refused in a case short of murder or involving some public policy. Mere attribution of allegation relating of gravity of offence could not be a consideration for refusal of bail".

7. In the case of Abdul Hay uz Zafar, it was held that "the grant of bail was a rule and its refusal an exception". It was further held that "Courts are not supposed to keep in view only maximum sentence provided under relevant law but have also to consider as to what punishment was ultimately likely to be awarded to an accused in a particular case". I respectfully rely on these cases, and hold that the cancellation of bail of Shahadat petitioner was not correct. The principles for grant of anticipatory bail and bail after arrest are different.

8. In view of the above, Shahadat alias Bagga is allowed bail on his furnishing bail bond in the sum of Rs. 5,000 with one surety in D the like amount to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Sheikhupura.

M. Y. H. Bail granted.

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