1. NADEEM AZHAR SIDDIQUI, J.- The applicants seeks their release on bail in Crime No. 176/05 of P.S. A- Section Kandhkot; for offence under Section 337-A(ii), F(v), A-1, F-1, 147, 148 PPC; The allegation in the FIR 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.
2. The bail application was moved before the Trial Court who refused bail on the ground that the names Of the accused appear in the FIR 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.
3. Learned advocate for the applicant submits that the complainant and all the PWs are related to each other, the 8 days delay in lodging the FIR has not been explained, the statement u/s. 161, Cr.P.C, was recorded after eight days, the name of one co-accused Fayaz Goto was kept in column No. 2 of the FIR 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.
4. The learned Asstt: A.G. 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.
5. I have heard the learned counsel for the parties and perused the record made available before me.
6. The contention of the learned counsel for the applicant is that eight days delay in lodging the FIR 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 FIR was lodged on 14.11.2005 after seven days- which was at all not explained. Similarly the statement of PWs was recorded after unexplained delay. The delay in lodging the FIR 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 js 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 Hon'ble 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 Hon'ble-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 abscondence of tempering with the prosecution evidence;
(b) where there, is apprehension of the accused tampering with the prosecution evidence; and
(c) where the accused is a previous convict."
7. The present case does not fall within the exceptions laid down by the Hon'ble Supreme Court. The learned Trial Court should be careful in dealing with these types 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.
8. Following the principle 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.
9. The bail application is disposed of.