' HASNAT AHMAD KHAN, J.---Through this application, Mushtaq Ahmad petitioner accused of case F.I.R. No,478 of 2008, dated 26-8-2008, registered at Police Station, Mozang, Lahore, in respect of offences under sections 337-A(i), A(ii), F(i), L(2), 34, P.P.C., has sought concession of post-arrest bail.
2. Shorn of unnecessary details, the prosecution's version, as unfurled in the F.I.R., registered at the instan ce of Ghulam Mustafa, Advocate-complainant is that, on 13-8-2008 at 1 0-00 a.m., while he was sitting in the office of Director, Excise and Taxation, Farid Kot House, Lahore, Mushtaq Hussain- petitioner and his br other Fiaz Hussain, both armed with pistols, entered into the said roon a and assaulted him after bawling out. He further alleged that the petitioner caused a blow on his (complainant's) forehead with the butt of his pistol, whereas Fiaz Hussain co-accused injured his lips by causing a blow with the butt of his pistol. He went on the allege that he was m:anhandled by both the said accused along with two other unknown co-acc used.
3. In support of this application, learned counsel for the petitioner has contended that the complainant is petitioner's brother-in-law, however, the families fell apart after cropping up matrimonial disputes between the said couple; that in the said background, the complainant is out, and out to blackmail, victimize and harass the petitioner; that in order to accomplish the said design, the complainant has already lodged a number of criminal cases against the petitioner, which, however, after thorough investigation, were found to be false and the said criminal cases have already been reported to be cancelled; that, in fact, it was the petitioner, who was thrashtd and flayed by the complainant and his associates but as the complainant belongs to an influential segment of society, therefore, the Inves tigating Officer could not dare to have the petitioner medically examined; that with a mala fide intention Aamir Ali Chaudhry, Advocate, who according to the complainant is an eye-witness of this occurrence, lodged an F.I.R. Against the petitioner on the day of occurrence at the Police Station Civil Lines, Lahore with the allegation that after the alleged occurrence, mentioned in the present F.I.R. The petitioner again launched an attack on the complainant-party in the emergency of Ganga Ram Hospital where the complainant had rushed for his medical examination after receiving injuries in the first incident; that the F.I.R. In this case has been lodged with the delay of three days; that after thorough investigation, Fiaz Hussain/co- accused of the petitioner was declared innocent by the Investigating Officer, who further opined that at the time and place of occurrence, the petitioner was not armed with a pistol; that this is why no recovery could be effected from or at the instance of the petitioner and that the offence allegedly committed by the petitioner does not fall within the prohibitory clause.
4. Conversely, learned counsel for the complainant has opposed the bail application tooth and nail by submitting that the petitioner is a hoodlum and desperate criminal having a long list of criminal cases to his credit; that after manhandling the complainant in the office of Director, Excise and Taxation, Lahore, the petitioner followed the complainant and his witnesses, who had gone to Emergency of Ganga Ram Hospital for medical aid and examination of the complainant; that the said conduct of the petitioner shows that he has little respect for the law and that, though, offence does not fall within the prohibitory clause, yet this does not mean that he is entitled to bail as a matter of right. In order to show that the petitioner is not a man of clean antecedents, learned counsel for the complainant has relied upon various F.I.Rs, registered against the petitioner and other documents, which have been received and placed on the record with the concurrence of learned counsel for the petitioner, who has also placed plethora of documents on the record in order to rebut the contentions raised by the complainant.
5. After giving an ardent hearing to learned counsel for the parties and going through the record, I have observed that the parties have locked horns due to matrimonial dispute, which arose between the complainant and his wife, who is petitioner's real sister. It appears that petitioner's wife has filed a suit for recovery of maintenance against the petitioner.
6. The police officer in attendance concedes that during the investigation, no incriminating material was recovered at the instance of the petitioner. The police file produced by the said officer further reveals that during the investigation, it was found that petitioner was not armed with pistol at the time and place of occurrence. The prosecution's allegation to the extent of Faiz Hussain/co- accused has also been found false. It is true that opinion of the police is not binding on the Courts but at the same time it is also true that while deciding bail applications, the same can be validly taken into consideration by the Courts.
7. It is an admitted fact that offence allegedly committed by the petitioner, being punishable with a maximum sentence of five years, does not fall within the prohibitory clause of section 497, Cr.P.C. It is an established law that in cases falling outside the prohibitory clause of section 497, Cr.P.C., the bail is granted as a rule while refusal thereof is an exception. Reliance in this regard is placed on the case of Tariq C Bashir and 5 others v. The State (PLD 1995 SC 340). However, no accused can seek bail as a matter of right on the said ground. In exceptional cases the bail can be refused to the accused despite the fact that the offence allegedly committed by him does not fall within the prohibitory clause. While considering the case in this backdrop, I have gathered that the complainant has relied upon a number of F.I.Rs, registered against the petitioner to show that he does not possess a clean slate. On the other hand, the petitioner claims that many of the said criminal cases have been lodged falsely by the complainant or his allies out of malice. He further claims that most of the cases registered against him have already been found false. The discharge reports submitted by the learned counsel for the petitioner, tentatively speaking, support the D petitioner's contention. Besides, it is an established law that everybody is presumed to be innocent till proven to be otherwise. The fact, which has tilted the weight in favour of the petitioner is that of his being a government servant as he is not likely to abscond in case of grant of bail in his favour.
Allowing of bail does not mean the acquittal of the accused, rather meaning and purpose of bail is handing over the custody of the accused in the hands of surety, who takes the responsibility of E producing the accused before the trial Court as and when the said accused is summoned or required by it. Moreover, I have gathered that F the petitioner is suffering pre-trial punishment since 23-8-2008, on which the second occurrence in continuation of the first, one took place within the jurisdiction of Police Station Civil Lines. Interestingly enough, though the police was fully aware regarding the arrest of the petitioner in the subsequent case, yet his formal arrest in this case was effected on 10-9-2008.
8. For all what has been stated above, I am inclined to grant concession of post-arrest bail to the petitioner but of course subject to his furnishing bail bonds in the sum of Rs,1,00,000 (rupees one hundred thousand) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
9. Before parting with this order, it is observed that in case the petitioner misuses the bail by pressurizing, threatening the complainant, tampering with the record or hoodwinking the trial, the complainant or the State, as the case may be, would be entitled to move for cancellation of to the petitioner.