' The above captioned revision petition is directed against the order of District Criminal Court Bhimber dated August 31, 2004, whereby the said Court has extended the concession of bail before arrest to the non-petitioners (accused).
2. Briefly stated the prosecution case as unfolded in the First Information Report, is that on July 28, 2004, the complainant was going towards Bhimber for some work from his house. When he got off from the vehicle, at bus stop Mughlora, at 9-30 a.m , he saw Nasir Ahmed, Muhammad Nasim, Zahid Hussain and Yasir Hussain standing there, armed with hatchets. While seeing him, Nasir Ahmed accused non-petitioner inflicted injury with his hatchet on his head. He fell down on the ground. The remaining co-accused (non-petitioners) inflicted injuries from the backside of hatchets. The occurrence was witnessed by Muhammad Ashraf and others who intervened and the accused non-petitioners ran away from the place of occurrence. After registration of the case, the non-petitioners (accused) moved an application for bail before arrest in District Criminal Court Bhimber. The said Court allowed the concession of bail before arrest, vide impugned order. Hence, the instant revision petition has been filed.
3. The learned counsel for the petitioner argued that the non-petitioners (accused) committed the offence with an intention to commit, murder. Nasir Ahmed, (accused) non-petitioner inflicted injury on the head of the complainant with hatchet. The learned counsel further submitted that it was established that the petitioner (complainant) sustained injury on the head, which is a vital part of the body; therefore, the offence under section 324, A.P.C. Is established against him. He submitted that the remaining non-petitioners (accused) facilitated Nasir Ahmed for causing injuries and they also inflicted injuries on various parts of his body. They were not entitled to the concession of bail.
The learned counsel submitted that the lower Court has erroneously allowed the concession of bail before arrest to them. He contended that it was an extraordinary remedy which has wrongly been extended to them and it has been allowed just in a routine, which is not permissible under law.
4. While repudiating the arguments advanced by the learned counsel for the petitioner, the learned Advocate appearing for the non-petitioners (accused) contended that prima facie, the offence under section 324, A.P.C. Does not constitute against the non-petitioners. He contended that according to the medical report, the petitioner sustained injury with a blunt weapon. The prosecution story does not find corroboration from the medical report. He further emphasized that the non-petitioners were not intending to commit the murder of the petitioner (complainant), therefore, the offence under section 324, A.P.C., does not constitute against them and the Court below has rightly allowed them the concession of bail. He submitted that the impugned order does not suffer from any illegality and does not require any indulgence by this Court. The revision petition may be dismissed.
5. I have heard the respective arguments of the learned counsel of the parties and gone through the entire record carefully.
6. At the very outset, it may be observed here, that it came to my notice that mostly the lower Courts, in Azad Jammu and Kashmir are extending the concessions of bail before arrest just in a routine. The lower Courts are not considering the difference between bail before arrest and after arrest. It is fundamental and basic responsibility of the Courts below, considering the applications for bail before arrest to consider all the conditions laid down by the superior Courts from time to time for considering the applications for bail before arrest. One of the essential conditions is that the intended arrest should be tainted with mala fide and such mala fide must specifically be pleaded. Now, the question emerges as to whether in the present case, any sort of mala fide, on the part of prosecution was pleaded by the non-petitioners (accused) or not? I have perused the contents of the application moved by the non-petitioners for bail before arrest. Nowhere, it contained any such mala fide on the part of the complainant or police. The Court below has failed to take into consideration that no malice has been attributed to the complainant or police. It was also obligatory on the part of non-petitioners (accused), seeking the concession of bail before arrest, to state that they apprehended arrest on account of some ulterior motive, or the prosecution was motivated by malice for causing injury to the good C will and liberty of .The non- petitioners, or the police was motivated by some reasons on the basis of some political grounds.
This view finds support from 1983 SCM R 645.
7. It would also not be out of place to mention here that bail before arrest is an extraordinary remedy and it shall not be allowed just in a routine. It effects and divert the normal course of law, therefore, the considerations laid down for bail before arrest, are quite different from those for bail after arrest. This view finds support from 1982 SCM R 227. It is pertinent to note here that bail before arrest could only be allowed in extraordinary circumstances, because the basic purpose and object of it, is to avoid humiliation of a respectable and dignified citizen. The Courts must refrain from exercising such extraordinary powers just in a routine. Grant of bail before arrest is very rare, but despite this the Courts use to grant the bails where it is felt that the accused person has, probably, been involved in a false and concocted case and is likely to suffer an irreparable injury to his honour and dignity. Therefore, in order to justify the grant of bail before arrest, the non- petitioners (accused) have to establish that they apprehended their arrest on account of some ulterior motive.
8. It also came to my notice that the lower Courts are exercising their discretions, regarding the concession of bail before arrest liberally, just in a routine. They are not making distinction between the bail before arrest and after arrest. In case, if such situation shall remain prevailing then it will amount to encouragement of vandalism and the peace, harmony and tranquillity of the society shall be jeopardized. The lachrymose malediction of poor victim of crime shall ruin us. Therefore, the Courts below must be cautious and careful while allowing the bail before arrest and it should not be allowed in a routine. The Courts should draw distinction between bail before arrest and after arrest.
9. In the case in hand, the allegation attributed to Nasir Ahmed '(accused) non-petitioner is that he had inflicted injury with the hatchet on the head of the complainant. According to the medical report, he sustained injury on his head which of course is a vital part of the body. Undoubtedly, according to the medical report, although the injury was simple in nature, but subsequently, a Medical Board was constituted and according to its opinion, injury No,1 was Shajjah-i-Mudihah, while the rest of injuries are Ghayr Jaifah Damiyah. Assuming for the sake of arguments that the complainant sustained simple injury on the head even then offence under section 324, A.P.C.
Constitutes. He inflicted injury on the skull of the complainant, therefore, it could not be said that offence under section 324, A.P.C. Does not constitute.
10. So far as the case of other accued-non-petitioners is concerned, simple and minor injuries were attributed to them, therefore, the lower Court has rightly allowed the concession of bail to them, whereas the case of Nasir Ahmed accused-non-petitioner was not, at all, a case of bail before arrest and the lower Court has wrongly allowed him the said concession.
11. In view of above, this revision petition is partly accepted, to the extent that the lower Court has wrongly allowed the concession of bailII before arrest to accused-non-petitioner (Nasir Ahmed) and has rightly allowed the same in favor of the remaining non-petitioners. Consequently, the impugned order, dated 31-8-2004, passed by the lower Court stands modified to the extent indicated above. The revision petition stands disposed of accordingly. It shall be consigned to the record room.