' HAFIZ ABDUL REHMAN ANSARI, J.---Through this petition the petitioner seeks post-arrest bail in case F.I.R. No, 412 of 2009, dated 5-10-2009 registered under sections337-F(v), 337-A(i), 337-1(i), 337-A(ii).
337-L(ii), 148, 149, P.P.C. With Police Station Dera Raheem District Sahiwal.
2. The prosecution story in brief is that on 4-10-2009 the accused persons vicariously armed with deadly weapons after raising Lalkara caused injuries to the victims of the F.I.R.
3. The post-arrest bail petition of the petitioners was firstly dismissed by the learned Judicial Magistrate Ist Class, Sahiwal on 26-11-2009 and then by the learned Additional Sessions Judge, Sahiwal on 31-12-2009.
4. Learned counsel for the petitioner submits that there is one day unexplained delay in lodging the F.I.R.; the occurrence took place on 4-10-2009 while F.I.R. Was got registered on 5-10-2009. Learned counsel submits that it was a free fight on the complainant side as well as on the accused side persons was injured. The injuries of the accused were suppressed by the complainant. From the petitioner/ accused side Muhammad Ashraf, Shahbaz and Riaz were injured and injuries inflicted to them were suppressed by the complainant. Cross version was got registered through petition under section 22-A of Cr.P.C. Later on this cross version was cancelled on 2-1-2010 for which the accused party has filed an application before high-ups for the change of investigation with regard to cancellation of cross version. Learned counsel submitted that section 452, P.P.C. Was deleted vide Diary No,10 dated 27-10-2009 as the occurrence was found to be taken place out side the complainant's house and not inside the house of the complainant. This was the only offence which falls within the prohibitory clause which was deleted and rest of the offences do not fall within the prohibitory clause. Learned counsel placed reliance on Ghulam Muhammad and another v. The State 1977 PCr.LJ 161, Inayat Baig v. The State 1986 PCr.LJ 2526, Muhammad v. The State 1986 PCr.LJ 205, Ali Akbar Shah v. Banaras and others 1990 SCM R 1097 and Azmat v. The State 1981 PCr.LJ 1158 Lah.
5. On the other side learned Law Officer assisted by learned counsel for the complainant submits that occurrence took place, outside the house of the complainant is incorrect. The finding of the police is not binding on this Court. The police has mala fidely deleted section 452, P.P.C. It was not a free fight. The accused attacked the complainant party inside the house of the complainant. The accused mercilessly gave beating to Mst. Pathani wife of Bashir Ahmad, Abdul Ghafoor and Yasin and the injuries on some of the injured were kept under observation but later on X-ray report for nature of injuries is obtained which was on the police file. According to this X-ray report also, injuries inflicted by accused party on the body of different injured are, fall within the category of sections 337-F(v), 337-A(i), 337-F(i), 337-A(ii), 337-L(ii), P.P.C., none of these injuries fall within the prohibitory clause of section 497, Cr.P.C. Learned counsel submits that it was not a free flight. The cross version of the accused party is cancelled on 2-1-2010 now at this stage only the case of the complainant is proved in the investigation.
6. I have heard the learned counsel for the parties.
7. It is admitted fact that injuries on the body of accused Ashraf, Shahbaz and Riaz were also caused from the side of accused. Cross version was got registered through petition under section 22-A, Cr.P.C. Seeking direction from the learned Ex-Officio Justice of Peace/Additional Sessions Judge. The injuries were suppressed by the complainant in the F.I.R. Which makes the case of petitioner for further inquiry. Only non-bailable offence which were mentioned in the F.I.R. Was 452, P.P.C. Which was deleted vide Diary No,10 dated 27-10-2009 the rest of the offences do not fall within the prohibitory clause of section 497, Cr.P.C.; challan of the case is submitted before the learned trial Court. The petitioners are behind the bars since 25-10-2009. Muhammad Riaz, the accused who fractured the arm of Ghafoor injured has not applied for bail. The injuries attributed to present petitioners fall under sections 337-F(v), 337-A(i), 337-F(i), 337-A(ii), 337-L(ii), P.P.C., punishment of which is five years. The petitioners cannot be kept behind the bars for an indefinite period. They are no more required for further investigation. The injuries suppressed by the complainant which was caused to the accused/petitioners side. The petitioners cannot be kept behind the bars as punishment before the trial. The offences do not fall within the prohibitory clause. It is observed by the honourable Supreme Court of Pakistan in the case of Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34.
In these two cases it is held by the Honourable Supreme Court of Pakistan that:-- "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 imprisonment for ten years: and (ii) offences punishable with imprisonment for less than ten years. The principle to be deducted 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."; ' It is also observed in the same judgment of the honourable Supreme Court that:-- "The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory C reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run."
8. In the light of above discussion I accept this petition the petitioners are allowed bail in the sum of Rs.100,000 (one lac) each with one surety each in the like amount to the satisfaction of learned trial Court.